
Book.. 



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COPYRIGHT DEPOSIT 



THE NEW ERA 



THE NEW ERA 



BEING A 



SURVEY OF INDUSTRIAL ACCIDENT COMPENSATION 

LEGISLATION OF EUROPE AND UNITED STATES, WITH 

ESPECIAL REFERENCE TO THE RHODE ISLAND ACT 



BY 

FRANCIS I. McCANNA, LL.M. 

OF THE RHODE ISLAND BAR 



PROM PRESS OF 

SUN PRINTING COMPANY 

PROVIDENCE, R. I. 

1917 



.V\^ 



Copyright, 1917, 

by 

Sun Printing Company 



)CI.A470067 



t 



TO 

MY MOTHER 

THIS 

LITTLE VOLUME 

IS AFFECTIONATELY 

INSCRIBED 



TABLE OF CONTENTS. ix 



TABLE OF CONTENTS 



CHAPTER L 

History of Workmen's Compensation. — Passage of 
various foreign acts. — Distinction between Code 
Napoleon and Common Law and rights of em- 
ployees under each. — Opposition of employers 
to workmen's compensation. — Arguments for 
and against. — Social aspect of these laws 15-22 

CHAPTER H. 

Workmen's Compensation legislation in Germany. 
— Considered as an experiment. — Laws in 
vogue in principal European countries 23-30 

CHAPTER HL 

Regulation of conduct of citizens a duty of the 
state. — Liability of employer under common 
law. — Fellow servant rule. — Change in char- 
acter of industrial machinery with advent of 
steam and electricity 31-38 

CHAPTER IV. 

Statistics as to causes of accidents and amounts paid 
therefor. — Comparative negligence. — Fellow 
servant rule abolished in Massachusetts and 
many other states. — Federal employers' liability 
act. — Economic inequality result of old laws. . 39-47 



X TABLE OF CONTENTS. 

CHAPTER V. 

Aim of compensation idea and purpose of act as 
laid down by Rhode Island Supreme Court and 
New York Court of Appeals. — New York law 
held unconstitutional and new law passed. — 
Similar law in Washington held constitutional. 
— Recommendations of American Bar Associa- 
tion. — States in which workmen's compensation 
laws have been adopted. — R. I. Act 48-54 

CHAPTER VI. 

Election by employee. — Status of minor. — Intoxi- 
cation or wilful injury. — Payments when death 
results. — Who are dependents. — ^Total and par- 
tial disability 55-61 

CHAPTER VII. 

Payments for specified injuries. — Notice of injury. 
— Physical examination. — Claims not assign- 
able. — Lump sum payments. — Agreements be- 
tween the parties. — Procedure when no agree- 
ment is reached 62-69 

CHAPTER VIII. 

Pleadings. — Hearing, decision and execution. — Ap- 
peal. — Review of findings. — Limitations as to 
claims. — Employer must secure compensation 
insurance 70-77 



TABLE OF CONTENTS. xi 

CHAPTER IX. 

Compensation insurance policies must contain cer- 
tain provisions. — Employee may enforce claim 
against either employer or insurer. — Subroga- 
tion. — Inadequacy of disability allowance. — 
Foreign laws as to disability. — Waiting periods. 
— Medical attendance 78-85 

CHAPTER X. 

Choice of physician. — Selection by employee, — 
Physician's difficulty in enforcing claim. — 
Example.— Suggested amendments 86-94 

CHAPTER XI. 

Decisions relating to medical attendance. — Emer- 
gency treatment. — Delay in awarding compen- 
sation under present system. — Advantage of an 
Industrial Accident Board. 95-102 

CHAPTER XII. 

Constitutional validity of industrial accident com- 
pensation legislation established by U. S. 
Supreme Court. — Province of judiciary and 
legislature. — Decisions of U. S. Supreme Court 
on New York, Washington and Iowa Acts with 
discussion of these Acts. — Quotation from 
opinions of Mr. Justice Pitney in above cases. . 103-111 

APPENDICES. 

Appendix A 113 

Appendix B 135 



FOREWORD 

A while ago the writer was called upon to consider, 
in certain of its aspects, the industrial accident compensation 
legislation in force in this state. It is a remarkable fact 
that this species of legislation, although of great moment 
in the economic history of our country, received, until 
lately, little consideration, due apparently to the fact that 
its importance was neither contemplated nor appreciated. 

There has been a noticeable paucity here of literature 
relating to the experience of foreign countries in this 
zone of economic reform, notwithstanding the fact that 
sound legislation of this character must necessarily be 
referable to the attitude of Continental Europe in 
connection with its compensation laws, in the molding 
of which the greatest economic thought of the world 
participated. 

The observations contained herein are not offered as 
a historical review nor in the nature of a complete stat- 
istical compilation. The purpose is to trace, briefly, 
legislation relative to this subject which, after trial, has been 
found sound and beneficial. 

Aside entirely from the question of humanitarianism, 
and solely from the viewpoint of sound economics, we 
need indulge in no flight of imagination to presume to 
assert that just legislation along this line not only ele- 
vates both economically and morally the lot of the em- 
ployee, but is advantageous, in the end, to the employer. 

We are not unmindful that any suggestion looking to- 
wards broadening the scope of compensation laws has 

(XIII) 



14 FOREWORD 

been viewed with alarm by the industries, being regard- 
ed, seemingly, as something that may unfavorably af- 
fect them; but we venture to suggest that the history 
of this class of legislation and the experience of the 
countries in which it has long been in force, prove that 
those fears are entirely chimerical. It has been demon- 
strated that the fashioning of compensation laws so as 
to give broad, substantial protection to the employee 
has not only brought happiness and contentment to him, 
but has invariably resulted in greater success and pros- 
perity for the industry. 

Our own state, never backward in its desire to make 
its people contented and happy, will, we trust, be a 
leader in this worthy work of fashioning and adopting 
true, just and economically sound compensation legisla- 
tion. The start has already been made but there is 
much yet to be done before the work is jfinished. If this 
little volume serves to aid in bring about this desired result 
its object will have been attained. A small portion of this 
work appeared in two articles by the writer in the Quarterly 
Bulletin of the State Board of Health and The Rhode Island 
Medical Journal, respectively. 

An appendix summarising the compensation laws of 
the leading American states has been added to this work 
for comparative study. 

Francis I. McCanna. 
Providence, Rhode Island 
March, 1917. 



CHAPTER I 



Until recently the matter of social insurance was 
little discussed in the United States although for 
years this subject has been receiving great attention 
in almost every country in Europe. There has been 
an awakening to the importance of this branch of 
economic science with the result that during the last 
half dozen years industrial accident laws have been 
placed upon the statute books of most of the Amer- 
ican states and territories- 
Reflecting upon this changed condition, we 
wonder, not at the new legislation itself, but why 
it has been delayed so long. Why were we more 
than a quarter of a century behind the best thought 
of Europe in such important social legislation as 
providing accident insurance for the working mem- 
bers of the community who are unable to look after 
themselves ? This is but one of the many branches 
of what is properly termed social insurance and is 
deemed by many the most important. The other 
divisions of social insurance embrace health, old 
age, maternity, burial, widow and orphan insur- 
ance. Some of these forms of relief are already in 
force in several of the European countries. 

The introduction of the principle of definite and 
certain compensation in industrial accident cases in- 

(15) 



16 THE NEW ERA. 

to this country, while tardy, is nevertheless epochal 
in our economic history, and is a sign of the pro- 
gress of the times. It is the recognition of a prin- 
ciple which is bound to grow and expand as its 
worth becomes known and established. It is inter- 
esting to observe how this great right sustained by 
every consideration of humanitarianism and justice 
fought its way as a part of the industrial life of 
the country. Many of the state compensation acts 
are crudities and give manifest evidence of lack of 
proper consideration upon the part of the drafts- 
men. They serve, however, the purpose of placing 
upon the statute books sound economic legislation 
and for this, if for nothing else, the f ramers of the 
acts, as well as those who approved of them, are to 
be thanked. 

While the principle of compulsory compensation 
received its first recognition by Germany, when the 
famous compensation act of 1884, sponsored by 
Bismarck, was enacted, the idea of compensation in 
its relation to social insurance was in actual practice 
prior to that time; indeed it has been claimed 
that it dates back to the early centuries. 

By this is meant that coincidental with the rise 
of the wage earning class there came into being, 
established by that class, dififerent forms of mutual 
aid; and it is asserted that these organizations 
formed substantial ground work for the later state 
systems of social insurance first promulgated in 
Germany. 



THE NEW ERA. 17 

We hear much of the German system in discus- 
sions relative to industrial accident legislation. 
This system typifies the compulsory,state controlled, 
compensation law. Later acts embracing this idea 
are referred to as being patterned after the German 
system, as contrasted with the other schemes of 
compensation, and usually referred to as embody- 
ing the English idea. 

Austria passed a compensation act in 1887, Hun- 
gary, 1891; Norway, 1894; Finland, 1895; Great 
Britain, 1897; France, Italy and Denmark, 1898; 
Spain, New Zealand and South Australia, Luxem- 
burg and British Columbia, 1902 ; Russia and Bel- 
gium, 1903; Cape of Good Hope and Queensland, 
1905; Mexico, 1906; Transvaal, 1907; Alberta, Bul- 
garia and New Foundland, 1908; Quebec, 1909; 
Servia and Nova Scotia and Manitoba, 1910; 
Switzerland and Peru, 1911, and Roumania, 1912. 

The enactment of this character of legislation in 
Europe came after a bitter struggle which ex- 
tended through a period of years. For instance, we 
find that the subject was constantly under discus- 
sion in France for a period of over fifteen years be- 
fore an accident compensation law was placed upon 
the statute books of that country. In Italy, twenty 
years of struggle preceded the adoption of the legis- 
lation. In Sweden and Norway, from ten to fifteen 
years of agitation were necessary to secure the 
adoption of the principle, and in Belgium and Rus- 
sia compensation acts were presented to the govern- 



18 THE NEW ERA. 

ing bodies years before they were favorably acted 
upon. The Swiss act, which embodies probably the 
most advanced form of compensation legislation, 
was made a law after a long and bitter struggle in 
the course of which the act as first submitted was re- 
jected by a popular vote. Then the present law was 
framed and passed. Thus when we are considering 
the American compensation legislation to which we 
shall later refer, we must bear in mind that the com- 
pensation principle is not an experiment since we 
have the experience of the various European coun- 
tries to which we may refer in considering the wis- 
dom of the various enactments. 

Prior to the adoption of accident compensation 
legislation rights and remedies in cases of personal 
injuries in Continental Europe were for the most 
part governed by the Code Napoleon. In England 
and her colonies the English common law prevailed. 
The right to damages under the Code Napoleon was 
based upon the idea of fault. If the employer was 
negligent it was deemed proper that he should be 
made to pay damages. If the employee was negli- 
gent, or if the accident was the result of what is 
known as ''trade risks" compensation was denied. 

Under the common law of England the em- 
ployer's duty to his employee comprehended the 
use of reasonable care for the safety of the em- 
ployee. If the injury to the workman occurred 
wholly through fault or neglect on the part of the 
employer, the former might recover such damages 



THE NEW ERA, 19 

as he could show he had sustained by reason of the 
injury. The common law, however, holds the 
master liable only when the injury is the direct 
result of negligence or carelessness in the conduct 
of the employer toward the employee, recovery by 
the employee being barred in case the employee be 
negligent in such a way as to contribute to the in- 
jury, or if the injury be brought about by the neg- 
ligence or fault of a fellow servant or if it be the 
result of the hazard of the employment assumed by 
the employee. It will be noted that under this 
system of jurisprudence the right of an employee 
to recover damages for personal injuries sustained 
by him in course of his employment is limited to 
cases wherein he is able to show that his injuries 
were sustained through neglect or fault upon 
part of his employer. 

The employer earnestly argued that the safe- 
guarding of his industry required that the employee 
should be called upon to exercise due care for his 
own safety, and that to hold the employer liable 
except in case he be negligent would open the door 
to a flood of claims against which the employer 
could not protect himself and spelled ruin for the 
industry. 

As opposed to this attitude it was shown that 
there was statistical evidence that most accidents 
were due either to the fault of the employee, or 
fault upon part of a fellow servant, or were the 
result of hazards of the employment, with the con- 



20 THE NEW ERA. 

sequence that in the vast majority of cases of per- 
sonal injuries the employee was without remedy, 
and in debatable cases the employee was at a 
disadvantage in proving liability since he was un- 
equipped to properly prosecute his action. In France 
it was estimated that in only one case out of ten 
involving this class of litigation did the litigant suc- 
ceed in obtaining damages. The rest of the serious 
accident cases usually resulting in the injured be- 
coming charges upon their friends, or objects of 
charity to be cared for by the community. The 
hardships of this situation could not be overlooked 
and as time went on employers gave way slightly 
under great pressure, and we find as a step in the 
way of ameliorating the condition of the workman, 
many of the European countries enacting laws 
tending to make easier the lot of the injured litigant. 
One of the first reforms was to shift the burden of 
proving negligence from the employee to the em- 
ployer. 

When compensation legislation was first broached 
in Europe there was a great outburst in opposition 
to it. It was claimed that such legislation was 
economically unsound and would shake the indus- 
tries of Europe to their foundations. Every argu- 
ment of which the great opposition minds of Europe 
could conceive was urged against the idea. It was 
contended that if the principle of fault be elimi- 
nated the entire industrial structure would collapse. 



THE NEW ERA. 21 

In support of this legislation it was pointed out that 
far from working destruction to the industry the 
compensation idea when enacted into law would be 
of benefit to the industry ; that what were termed in- 
dustrial accidents were not accidents at all but were 
incidents of production. It was shown that in the 
various lines of employment the average in the 
number and kinds of accidents could be ascertained 
without any trouble and that the financial loss to 
the workman by reason thereof should be made a 
charge upon the industry and should be figured in 
the cost of production, just as depreciation in 
buildings, machinery, tools and other personal 
property employed in the process of manufacture. 

Moreover, in its social aspect, it was pointed out 
that in many cases of industrial accidents there was 
no liability on the part of the employer to respond in 
damages and the efifect was the pauperization of 
the workmen and the imposition upon the com- 
munity of a burden which ought to have been borne 
by the industry. Moreover, and of vital interest 
to society, was the fact that this condition resulted 
in making the workman's family an object of char- 
ity, and the presence of want many times affected 
the morality and standard of life of the members 
of the household. Furthemore, even in cases where 
damages were recovered, it appeared that but 
a small part of the amount reached the workman. 
It was also shown that the expense to the em- 
ployer of defending accident suits was large and 



22 THE NEW ERA. 

the cost to the community of sustaining this class 
of litigation was likewise large and unnecessary. 
It was finally shown that the employer would be 
relieved from the necessity of giving attention to 
law suits and the possibility of large verdicts being 
obtained against him, thus obviating an immense 
amount of worry incident to such litigation. An 
additional argument was that the principle would 
practically eliminate the antagonism between the 
employee and employer engendered through acci- 
dent litigation thus creating a more friendly spirit 
in the ranks and making for the prosperity and suc- 
cess of the industry. But in spite of all of this 
it took a long time to bring the European Solons 
to the adoption of the compensation idea. 



CHAPTER II 

In 1881, the workmen's compensation law was 
introduced into the Reichstag in Germany but failed 
of adoption. Then came the famous message to 
the Reichstag by Emperor William I, recommend- 
ing legislation requiring employers in certain in- 
dustries to compensate injured workmen without 
regard to the cause of the injury. In his message 
the Emperor recommended the enactment of a bill 
for the insurance of workmen against industrial 
accidents, industrial sick relief insurance, old age 
and invalidity insurance. In answer to this mes- 
sage the sickness law was enacted by Germany in 

1883, the accident compensation law followed in 

1884, and in 1889 old age and invalidity laws were 
enacted. 

In its early days in Europe, the compensation idea 
was considered in the light of an experiment and 
was introduced with the thought of trying it out, 
with a certain timid belief that it would prove 
beneficial. The provisions of the early acts betray 
a tendency to limit the scope of the law, but as time 
went on the great worth of the compensation prin- 
ciple became apparent and the provisions of the 

(23) 



24 THE NEW ERA. 

earlier laws were quickly extended and broadened, 
and it may be truly asserted that every country that 
has adopted the act has by constant amendments 
endeavored to broaden its provisions that the law 
might be made more efficacious and beneficial. No 
country to the writer's knowledge has attempted to 
modify its compensation legislation so as to curtail 
in anyway any of the benefits to be derived under 
it. 

Having noted the developments of European 
compensation legislation we will briefly refer to 
compensation laws in vogue in the principal Euro- 
pean countries. 

The German law provides for compulsory insur- 
ance by the employer. He pays a premium based 
upon the annual payroll, to the insurance fund, out 
of which the employee is paid for his injuries and 
sickness. The fund is managed by a mutual asso-. 
ciation under the direct supervision of the German 
Government. Compensation is allowed for accident- 
al injuries received in course of the employment, 
for disability extending for more than three days 
unless caused intentionally. Medical and surgical 
treatment is provided for ninety-one days, and from 
the third to the ninety-first day benefits are paid out 
of the sick fund to which the employers contribute 
one-third, and the employees two-thirds; from the 
28th day to the 91st day payments are increased 
one-third, and the expense to the employer after the 
ninety-first day, and in case of death from the in- 



THE NEW ERA. 25 

jury, is borne by the employers' association. In case 
of disability free medical and surgical treatment is 
provided for the first thirteen weeks from the sick 
benefit fund and after that period by the employers' 
association. The allowance for temporary or per- 
manent disability ranges from 50 per cent, of the 
daily wages which is paid during the first few 
weeks, to 66 2-3 per cent, of the average earnings 
which is paid after the thirteenth week, and in cer- 
tain cases, for example, total disability, necessitat- 
ing the services of an attendant, the payments may 
be increased to 100 per cent, of the yearly wages of 
the injured workman. Disputes are settled by a 
board of arbitrators composed of one government 
official, two representatives of the workman and 
two representatives of the employer. 

In France, compensation is allowed to all work- 
men who sustain injuries arising out of the employ- 
ment where the incapacity continues more than four 
days unless the injuries were intentionally produced 
by the employee. The employer bears the entire 
expense of compensation. The injured employee is 
allowed medical and surgical attendance and has 
the right to select his own physician. In case of 
permanent disability the workman is allowed 
66 2-3 per cent, of his annual wages and in case of 
partial disability one-half the loss of earnings. In 
case of temporary disability the workman receives 
50 per cent, of his daily wages beginning with the 
third day unless the disability lasts more than ten 



26 THE NEW ERA. 

days in which case the payment becomes due from 
the first day. 

In case of the decease of the injured workman 
pensions are allowed his dependent heirs not ex- 
ceeding 60 per cent, of the annual wages of the de- 
ceased as follows : Widows 20 per cent, until death 
or remarriage, with a provision for a lump sum pay- 
ment in the latter case. Children under sixteen 
years of age, if no parent survives, 15 per cent, if 
there is but one child, 25 per cent, if there are two 
children, 35 per cent, if there are three children, 40 
per cent, if there are four or more children. Each 
child under sixteen years of age, if neither parent 
survives, 20 per cent. Each ascendant and each 
descendant under sixteen years of age dependent 
upon deceased, if no widow or children survive 10 
per cent., the aggregate not to exceed thirty per 
cent. 

For temporary disability, fifty per cent, of the 
daily wages beginning with the fourth day; but if 
the disability lasts more than ten days payments 
become due from the first day. 

In England the compensation act covers all em- 
ployments and the entire expense of compensation 
is borne by the employer. Where total or partial 
incapacity results from the injury a weekly pay- 
ment during the disability period not exceeding 
50 per cent, of the average weekly earnings during 



THE NEW ERA. 27 

the previous year is allowed. If the incapacity lasts 
less than two weeks the employer need not compen- 
sate for the first week. 

In Holland, all injuries causing disability for 
over two days are compensated unless brought on 
intentionally. All classes of employees are com^ 
pensated and the entire expense is borne by the 
employer. Medical and surgical treatment, so long 
as same may be required, is allowed the workman at 
the expense of the employer and the workman may 
select his own physician. Compensation equal to 70 
per cent, of the workman's daily earnings is allowed 
him for the first forty-three days of the injury, and 
after that time a pension in the same amount is 
allowed him for total disability and a smaller pen- 
sion regulated by the loss of earning power for 
partial disability. 

The Holland act also provides for compensation 
for all injuries caused by any accident occuring in 
course of the employment if disability therefrom 
extends over two days, unless brought on inten- 
tionally. If the injury was the result of intoxica- 
tion one-half the regular compensation is allowed 
but if death results in such case no compensation is 
paid. The compensation in all cases is borne by the 
employer. In case of death an amount equal to 60 
per cent, of the earnings of the deceased is distri- 
buted as follows: 

To the widow 30 per cent, of said earnings until 



28 THE NEW ERA. 

death or remarriage; to each child under the age 
of sixteen years 15 per cent, if one of the parents 
be living and 20 per cent, if both be dead. 

Provision is made in certain contingencies for de- 
pendent parents, grandparents, orphan grandchil- 
dren, and dependent parents-in-law. Free medical 
and surgical treatment is provided and the employee 
has the right to nominate the physician. The com- 
pensation allowance is 70 per cent, of the daily 
earnings during total disability and the allowance 
for partial disability is proportional to the loss of 
earning power. A state insurance fund is estab- 
lished to guarantee payment of the compensation. 

The Norwegian law compensates all injuries dis- 
abling the employee for more than four weeks, and 
covers practically all lines of industry. Free medi- 
cal and surgical treatment is allowed after the 
fourth week. In case of total disability an allow- 
ance equal to 60 per cent, of the wages of the in- 
jured person is made. 

No one can say with certainty at just what 
period of time the compensation idea became 
a matter of individual thought in the economic life 
of our country but we do know that this great prin- 
ciple of social justice having proved its worth in 
foreign climes pressed onward to our shores and 
demanded and gained recognition. Its adoption 
was as inevitable as the seasons of the year, as well 
try to stop the mighty waves of the ocean as to 
retard its progress. 



THE NEW ERA. 29 

A principle is not necessarily a right one, that is 
to say, sound, because a body of individuals or a 
great majority of the people may decree it so. We 
can recall numerous instances where something 
was adopted as being the right thing at the time, 
only to be discarded later because it did not work 
well. But that thing or principle is right which 
through its own merit forces recognition as a valu- 
able factor in the life of the times. 

The Federal Constitution declares that our gov- 
ernment was founded to establish justice, insure 
domestic tranquillity and promote the general wel- 
fare of our people. A paramount idea in the minds 
of the founders of our government and embodied 
by them in that immortal document was the right of 
every man to live and live happily. 

Good government means that system which truly 
promotes justice and establishes tranquillity among 
its people. It is that system which protects the weak 
against the strong, and which recognizes that there 
are limits to the ''survival of the fittest'' doctrine. 
By this reference to the weak, we do not mean that 
person who through frailty has to be cared for by 
others; that one is a proper object for charity. We 
refer to the condition brought about when compe- 
tition is free and every man may engage in an 
economic fight unfettered by any rules of conduct, 
that condition where everyone striving for the pro- 
motion of his own interests wholly disregards the 
welfare of his fellowmen, as well as that of the 



30 THE NEW ERA. 

state ; in other words, we use the words sound and 
unsound in an economic sense. 

It is the duty of the commonwealth to be strong 
because a state can live only so long as its govern- 
ment is strong; when it becomes weak it decays and 
vanishes just as did ancient Rome. When the con- 
duct of any part of the inhabitants of the state is 
thought to be detrimental to the state, it is then 
time for the government to step in and regulate such 
conduct. When any class of society in the pursuit 
of its own interests disregards the economic rights 
of the other classes in the community, the govern- 
ment is bound to announce that the worth of a man 
to the community shall be estimated not in propor- 
tion to the wealth he accumulates but in the ratio 
in which he contributes to the general welfare of 
the community. 



CHAPTER III 

If the state finds that a great part of its popu- 
lation is struggling under economic burdens too 
heavy for it to bear, it must ascertain wherein the 
defect lies that it may be remedied. It must require 
every individual to so conduct himself as to make 
for economic soundness in the life of the state. If 
the strong are oppressing the weak it must bid the 
former hold themselves in check; if on the other 
hand a portion of the citizenship is losing its grip 
upon itself the state must come to its aid and give 
it assistance. It must regulate any conduct upon 
the part of the individual which in anyway tends 
to weaken the structure of the state for only by so 
doing can a government survive. 

The perpetuity of the state bespeaks social justice 
and if we love our republic and would have it sur- 
vive, we should harken to the words of a noted 
writer who in speaking of the lessons of history 
says: *'First, it is a voice forever sounding across 
the centuries the laws of right and wrong. Opinions 
alter, manners change, creeds rise and fall but the 
moral law is written on the tablets of eternity. For 
every false word or unrighteous deed, for cruelty 
and oppression, for lust or vanity, the price has to 

(31) 



32 THE NEW ERA. 

be paid at last, not always by the chief offender but 
paid by someone. Justice and truth alone endure 
and live. Injustice and falsehood may be long lived, 
but doomsday comes at last to them in French revo- 
lutions and other terrible ways.'' 

That our republic has not heretofore played its 
part in extending to the industrial classes the pro- 
tection and care to which their condition in life en- 
titled them in cases of industrial accidents becomes 
very evident when we consider the situation of 
those classes prior to the enactment of the compen- 
sation law. 

Under the rules of the common law which we 
inherited from England, the obligation of the 
employer to respond to the workman for damages 
where personal injuries are sustained by the latter 
is based upon negligence or fault upon the part of 
the employer unaccompanied by any negligence 
upon the part of the workman. The employer is not 
held to be an insurer and is only required to exercise 
such ordinary and reasonable care and caution for 
the safety of his employees as the nature and dan- 
gers of the business permit and require; but the 
negligence of the employer must be the proximate 
cause of the injury. For example, it is the positive 
duty of the employer to furnish the employee with a 
safe place in which to work and with proper tools 
with which to perform the work. In accepting an 
employment, however, the employee is held, under 
the common law, to have assumed all the ordinary 



THE NEW ERA. 33 

and usual risks and perils incident to the employ- 
ment, whether it be dangerous or not, and also all 
risks of which he knows or of which he might know 
by the exercise of reasonable care upon his part, un- 
less there be some agreement to the contrary. The 
effect of this doctrine, more than anything else, 
gave rise to the later compensation laws. The rule 
of assumption of risk was a most harsh one. It 
proceeded upon the theory that the workman was a 
free agent to accept or reject a position at his 
pleasure, that if he accepted a job which he knew 
was dangerous he tacitly agreed to assume the risks 
of injury, otherwise he should have refused the 
position. 

Moreover if, after he engaged in the work and the 
place developed dangers, he is assumed to have ac- 
cepted the dangers because of retaining his position. 
In this line of reasoning the fact is lost sight of 
that the average workman is far from being a free 
agent, that often-times he is forced by keen com- 
petition in his field of labor and at other times by the 
stress of circumstances to accept hazardous work, 
when if he were free to choose he would reject it. 
To say that such a man must be held to have volun- 
tarily agreed to have assumed the risks and injuries 
incidental to the employment is unjust ; it is in truth 
taking advantage of the laborer's helplessness. 

In some jurisdictions it is held that even though 
the employee contributes to the injury he may re- 
cover for the injury provided the negligence of his 



84 THE NEW ERA. 

employer be gross. This doctrine of comparative 
negligence does not, however, apply when a risk has 
been voluntarily assumed by the servant. 

Furthermore, under the common law the em- 
ployer is not liable for injuries to the servant caused 
by the negligence of a fellow servant engaged in 
the same general business when the master has fur- 
nished proper means for carrying on the work and 
has used due care in his selection of servants. The 
leading case establishing this doctrine was decided 
in England in 1837. ' This ruling was followed by 
the supreme court of South Carolina in a case de- 
cided four years later. ' Then came the famous 
decision written by Chief Justice Shaw of the su- 
preme court of Massachusetts affirming the doc- 
trine of the two earlier cases. ' As Chief Justice 
Shaw was, perhaps, one of the greatest jurists 
America has ever produced the fellow servant rule 
was soon adopted as sound legal doctrine by prac- 
tically all the courts throughout our country. 

In giving his reasons for this doctrine, the Chief 
Justice says : 

"We are not aware of any principle which should 
except the perils arising from the carelessness and 
negligence of those who are in the same employment. 
These are perils which the servant is as likely to know, 



' Feltham vs. England L. R. 2 Q. B. 33. 

■Murray vs. So. Carolina R. R. Co. 1 McMull (S. C.) 38S. 

•Farwell vs. Boston & Maine R. Corporation 4 Mete. (Mass.) 49. 



THE NEW ERA. 35 

and against which he can as effectually guard, as the 
master. They are perils incident to the service, and 
which can be as distinctly foreseen and provided for 
in the rate of compensation as any others. ♦ * * Where 
several persons are employed in the conduct of one 
common enterprise or undertaking, and the safety of 
each depends much on the care and skill with which 
each one shall perform his appropriate duty, each is 
an observer of the conduct of the others, can give 
notice of any misconduct, incapacity or neglect of 
duty, and leave the service, if the common employer 
will not take such precautions, and employ such agents 
as the safety of the whole party may require. By 
these means, safety of each will be much more effect- 
ually secured, than could be done by a resort to the 
common employer for indemnity in case of loss by the 
negligence of each other. Regarding it in this light, 
it is the ordinary case of one sustaining an injury in 
the course of his own employment, in which he must 
bear the loss himself, or seek his remedy, if he have 
any, against the actual wrong-doer." 

In that case the court held that a railroad com- 
pany v^as not liable for injuries sustained by an 
engineer of a train, caused by the negligence of a 
switchman in charge of the operation of the switch. 

Another court in laying down the same rule says : 

"The rule had its origin in the idea that the em- 
ployee has the means of knowing just as well as the 
employer all the ordinary risks incident to the service 
in which he is about to engage and that these, including 
the perils that might arise from the negligence of 
other servants in the same business, enter into the con- 
templation of the parties in making the contract; on 



36 THE NEW ERA. 

account of which the law implies that the servant or 
employee has insisted upon a rate of compensation 
which would indemnify him for the hazards of the 
employment. And again the law supposes that the 
relation which the several employees sustain to each 
other and the business in which they are engaged, 
would enable them better to guard against such risks 
and accidents than could the employer. Besides the 
moral effect of devolving these risks upon the em- 
ployees themselves would be to induce a greater de- 
gree of caution, prudence and fidelity than would in 
all probability be otherwise exercised by them." 

In most jurisdictions fellow^ servants were held 
to embrace all who served the same master and who 
were under the same general control. For years 
the industrial classes in this country struggled 
under the oppressive rules of the common law, re- 
sulting, as we have heretofore seen, in the denial 
of relief in over two-thirds of industrial accident 
cases and the consequence was most unsatis- 
factory both to the employer and the employee. It 
has been estimated that about thirty- four thousand 
persons are killed and over a million and a half are 
injured each year in the industrial life of the United 
States. 

The common law rules governing negligent ac- 
tions were suited to the conditions existing at the 
times the rules were established. At that time 
industries were few and were usually operated 
under the personal supervision of the employer. 
The number of workmen was small and the 



THE NEW ERA. 37 

workmen were usually in daily contact with each 
other. In the early days much of the work was 
done by hand, tools being the principal medium of 
labor. There was nothing involved about the ways 
and workings of the establishment and the indi- 
vidual workman was usually as well informed as 
the employer in relation to matters concerning the 
employment. Indeed sometimes the employer and 
emplo)^ee were found working side by side in the 
promotion of the affairs of the industry. 

But ^ 'times change and men change with them." 
The modest factory became an immense in- 
dustry. The old industrial employer became a 
powerful corporation and the operation and super- 
vision of the work passed to a board of directors 
which operated through its numerous agents. 

The simple hand tools were replaced by numerous 
intricate high powered machines, driven by steam 
and electricity. The carr)dng on of the work of such 
vast enterprise required the services of thousands 
of workmen embracing various nationalities, hardly 
any one of whom was acquainted with the other. 

With this great change in the character of the 
industry came correspondingly great increases in 
the death and damage toll among the workmen. 
But the old legal rules governing, or rather, pre- 
venting, recovery by the injured workman con- 
tinued in force and it is no exaggeration to say that 
it was only in the exceptional case that the injured 
workman succeeded in recovering damages. 



38 THE NEW ERA. 

With the passing of the simple hand tool and the 
installation of high powered machinery it would be 
absurd to contend that an inexperienced workman 
impliedly agreed to assume the risks of the em- 
ployment, when only the most expert could under- 
stand and appreciate the intricate machinery in use 
in the establishment, nor could it sensibly be argued 
that the workman was paid commensurately with 
the risk assumed. The window-washer hanging to 
a rope at the side of a skyscraper building has a 
hazardous job, but will it be contended that his pay 
is at all comparable to that of the expert engraver 
who sits in comfort at his desk in the prosecution 
of his work? 



CHAPTER IV 

We noted above that the injured workman was 
debarred from recovering damages, (a) if the 
accident resulted from the hazards of the employ- 
ment, or (b) if the workman was negligent, or 
(c) if the accident was due to the negligence of a 
fellow servant. 

Let us see what proportion of industrial accidents 
involves any of the above elements. Perhaps the 
most trustworthy figures in this respect are those 
that were made by the German government, as it 
is generally conceded that Germany is best equipped 
of any of the countries to furnish statistical data 
in this class of cases. 

In the accident statistics published by that gov- 
ernment the causes of accidents are set forth as 
follows: Due to fault of the employer 16.81 per 
cent. ; due to fault of employee 28.89 per cent. ; due 
to joint fault of both 4.66 per cent. ; due to negli- 
gence of fellow servants 5.28 per cent. ; due to act 
of God 1.31 per cent. ; due to fault of no one 40.05 
per cent. An Ohio commission placed the number 
of accidents resulting from the hazards of the em- 
jJoyment at over fifty per cent, and said that only 

(89) 



40 THE NEW ERA. 

thirty per cent, of all industrial accidents was 
attributable to negligence of the employer. 

According to the German statistics the employee 
can recover in only 16.81 per cent, of the cases, 
while in this country according to the Ohio esti- 
mate he has a right of recovery in onlv thirty per 
cent, of the cases. 

In France it is estimated that in only ten cases 
out of every one hundred is there a right of re- 
covery on the part of the employee for damages 
sustained. Moreover in cases where damages were 
obtained the expense of litigation was so large that 
only a part of the sum recovered went to the em- 
ployee. 

In one of the states out of a total sum of 
$351,200 paid in fatal industrial accident cases 
about one-half this amount was paid to 12 per cent, 
of the cases, the remainder of the sum was divided 
among the other 88 per cent. ; 60 per cent, received 
from $50 to $500. The percentage of cases settled 
was 30 per cent. ; the average amount this 30 per 
cent, recovered was $838.01 ; the average attorneys' 
fees out of this $838.01 was 24 jper cent.; the 
widows who had to work 56 per cent. ; the percent- 
age of children who had to work 18; the reports of 
accident insurance companies for the year 1906-8 
made to the New York Liability Commission 
showed that in only 12.64 per cent, of the injury 
cases was compensation paid. A New York com- 
mission in a recent report to the Legislature showed 



THE NEW ERA. 41 

that in 58.1 per cent, of the fatal industrial acci- 
dent cases the employee was earning less than 
$16.00 per week, and 62 per cent, earning less than 
$15.00 per week; and of deaths resulting from in- 
dustrial accidents in Erie County and Manhattan 
Borough 6 per cent, earned less than $9.00; 17.5 
per cent, from $9 to $11 ; 36.5 per cent, from $12 
to $15; 20.9 per cent. $16 to $20.99; 10 per cent, 
over $21. 

The publication of statistics of this character 
caused thoughtful people to ponder and consider if 
something was not the trouble economically with 
our industrial system. It was apparent that hun- 
dreds of thousands of industrial accidents were 
occurring yearly and that in only a small fraction 
of the cases could damages be collected. It was 
evident that in the great majority of cases the 
burden was falling upon persons economically 
unable to bear it: the injured employee and his 
family. It was evident that since in half the fatal 
accident cases the workman was earning less 
than $16 per week, there was little opportunity to 
accumulate any surplus for the rainy day ; that this 
could have been done only at the risk of a lowering 
of the standard of life, a thing to be avoided. It 
was also seen that the crippled employee would have 
less earning capacity when he returned to work 
than he had before the accident, thus, many times 
making it necessary for his wife and children to 
seek work in order to make both ends meet. More- 



42 THE NEW ERA, 

over in the case of the dependent workman who 
was totally disabled, he would become an object of 
charity to be cared for by the public. 

The severity of these rules of the common law 
which precluded the injured employee from recov- 
ering damages in so many cases, was somewhat 
assuaged just before the introduction into this 
country of the compensation idea, but it seems 
strange to think that the American people did not 
realize the urgent need of such changes until with- 
in so short a period. The doctrine of comparative 
negligence was a judge made rule and was intro- 
duced first by the courts of some of the southern 
and western states in an attempt to relieve the em- 
ployee from some of the burdens of the old doc- 
trines. Later the legislatures of a few of the south- 
ern states made it a statutory law. 

The fellow servant rule against which a great 
hue and cry had long been raised also came in for 
attention with the result that in many states it was 
abolished altogether, while in other states its 
scope was restricted. These attempts to do away 
with some of the old common law rules were 
more or less sporadic, and so far as the investiga- 
tions of the writer have shown there does not 
appear to have been any very serious attempts to 
abolish any of the defences open to the employer 
under the common law, except as to the fellow 
servant doctrine. 



THE NEW ERA. 48 

Massachusetts, which was one of the first states 
to introduce the doctrine, abolished it in 1895; six- 
teen other states followed within the next few years, 
while other states contented themselves with modi- 
fications of the rule. The abolishment of the fellow 
servant doctrine was vigorously opposed by some of 
the employers on the ground that such legislation 
was in violation of the fourteenth amendment of 
the federal constitution. The Supreme Court of 
the United States, however, held the legislation 
valid. 

About the same period we find the federal gov- 
ernment enacting liability laws in substitution for 
the old common law remedies. In 1906 the federal 
government passed the so-called Employers' Lia- 
bility Act. It applied only to common carriers and 
its effect was to abolish the fellow servant rule and 
establish the principle of comparative negligence. 
The law was declared unconstitutional by the fed- 
eral Supreme Court. A second law somewhat 
similar to the first but overcoming the constitutional 
objections, was passed by Congress in 1908 and sub- 
sequently held valid in a decision by our highest 
legal tribunal. ' 

The attempts to modify the old common law 
rules, being a recognition of the inadequacy of those 
principles in their relation to modern industrial 
life, opened the way for the later accident compen- 

* Second Employer Liability cases 223 U. S. 1. 



44 THE NEW ERA. 

sation legislation. Once the start in that direction 
was made it was not a very difficult matter to per- 
suade public opinion to advance along the same road 
especially when the route was substantial and at- 
tractive. 

It was perceived that the old liability laws were 
objectionable from the standpoint of the employee 
and employer alike ; to the employee it was evident 
that a great number of accidents occurred without 
liability on the part of the employer to respond in 
damages; again when compensation was obtained 
it was usually small in comparison with the injury; 
and what was recovered came only after a long 
wait. Moreover, the expense incident to obtaining 
the settlement or verdict necessitated the expendi- 
ture of a substantial percentage of the amount ob- 
tained. Then there was always the chance of the 
workman losing his position through antagonizing 
the employer by bringing legal proceedings against 
him. On the other hand the employer had com- 
plained of the common law system because he was 
always subject in case of the happening of an in- 
dustrial accident in his plant to suit for large dam- 
ages, with its incidental expense and the possibility 
of a large verdict being rendered against him and 
of his business being affected. Then again litiga- 
tion between the master and servant affected the 
morale of the industrial force, as it was a usual 
and, probably, natural thing for some of the em- 
ployees to rally to the assistance of their injured 



THE NEW ERA. 45 

brother, in the prosecution of the case before the 
court, while others appeared for the master. Thus 
were created opposing factions in the ranks of the 
employees, with a consequent lack of incentive to 
best work upon part of the workmen in that place of 
employment. The removal of this cause of discord 
meant unity and contentment in the ranks and con- 
sequent betterment of the service. 

Moreover the interests of the state were to be 
considered. When charitable agencies did not in- 
tervene in behalf of maimed and crippled workmen, 
the support of those persons was borne by their 
friends and relatives who could ill afford in many 
instances to assume this extra burden. Further- 
more the great expense of litigation in connection 
with the prosecution of accident cases such as the 
expense of the courts and the juries was borne 
by the public at large. All these reasons and more, 
were adduced in opposition to the old common law 
procedure in industrial accident cases and in sup- 
port of a system of fixed and certain compensation, 
and the placing of the burden upon those best able 
economically to bear it. 

The advent of the compensation idea for indus- 
trial accidents in this country was coincidental with 
the realization that the old common law machinery 
was inadequate and should be discarded. The 
adoption of compensation acts was not preceded by 
the long discussion which accompanied their enact- 
ment in Europe. We had before us the result of the 



46 THE NEW ERA. 

discussions that had occurred among the great 
economic minds abroad, and the experience of the 
many foreign governments which had adopted 
compensation laws. A study of the proceedings and 
debates in connection with the various European 
conferences at which the compensation idea was 
discussed and recommendations made, shows that 
a proper compensation act must be based upon the 
idea of sure and definite compensation for every 
injury received in course of the employment irre- 
spective of the element of negligence, thus abolish- 
ing the idea of fault. 

It was seen that under present day industrial 
conditions, pitting the workmen against the indus- 
try, was creating a condition of economic inequality, 
to the great disadvantage of the employee. It was 
demonstrated that the average wage was too little 
to enable the employee to save any money and at 
the same time to properly support his family; 
that in case of sickness or death the average work- 
man's family faced a condition of indigency. The 
number of workmen interested in mutual insurance 
associations was very small and the very man who 
needed such protection, the one employed in haz- 
ardous work, was denied same because of the high 
rate of insurance or the refusal of the insurance 
company to accept the risk. It was realized that 
the welfare of the employee and his family was of 
vital interest to the state as the producer is the chief 
asset of the state in time of peace or of war. 



THE NEW ERA. 47 

It was realized that when a workman is injured 
and deprived of his earning capacity the financial 
loss should not be put upon the one who is economi- 
cally weak but should be borne by the industry to be 
paid ultimately by society in the character of the 
consumer. A careful employer in estimating the 
cost of production figures the depreciation in build- 
ing, the wear and tear and depreciation in ma- 
chinery, tools and appliances necessary in the manu- 
facture of the product, and it was reasoned that in- 
juries to the workmen arising out of the employ- 
ment are likewise items to be included in this cost 
of production and that the slight increase in cost 
to the consumer will be hardly felt by him. Then 
again it was felt that a better feeling would be 
engendered between the state and its citizens; if the 
state shows the workman that it is interested in his 
welfare the latter will have a kindly feeling for his 
government. 



CHAPTER V 

The compensation idea has for its aim the pro- 
tection of the great mass of workmen who in times 
of need and distress are unable to help themselves. 
The knowledge upon part of the workman that he 
will be cared for in case of injury and that his 
family will be provided for in case of death gives 
him a feeling of contentment and security, and 
makes for efficiency and good citizenship. But it 
must not be thought that the entire burden of the 
accident is borne by the industry. The workman 
under the various acts is obliged to accept a dimi- 
nution in his weekly wages varying from 33 per 
cent, to 50 per cent., and in addition to this the fact 
that he receives nothing for pain and suffering he 
is obliged to undergo as a result of the injury must 
not be lost sight of. 

The Supreme Court of Rhode Island in a recent 
decision said that the general purpose of the act is 
''to make compensation for the numerous accidents 
and injuries to workmen, which under present con- 
ditions occur in industrial enterprises, a part of the 
cost of production. It seeks to do this in accord- 
ance with a carefully regulated scheme disregard- 
ing many of the principles of the common law 

(48) 



THE NEW ERA. 49 

which formerly affected actions to recover compen- 
sation for such injuries." ' Another court says, 
''Workingmen's insurance and compensation laws 
are the products of the development of the social 
and economic idea that the industry which has 
always borne the burden of depreciation and de- 
struction of the necessary machinery shall also bear 
the burden of repairing the efficiency of the human 
machine without which the industry itself could not 
exist/' "^ 

The first legislation by a state in this country was 
in 1909 when the legislature of the State of New 
York appointed a commission popularly known as 
the Wainwright Commission to investigate in- 
dustrial accident statistics in that state and report 
with recommendations relative thereto. As a re- 
sult of its labor the commission reported for adop- 
tion a compensation measure, patterned after the 
English Workmen's Compensation Act of 1897, 
which has since been extended to cover every kind 
of occupational injury. 

In giving its reasons for departing from the old 
principles of common law liability the commission 
says : 



' Jillson vs. Ross 3S R. I. 145. 

^ Lewis etc. vs. Industrial Ace. Board (Mont.) 155 Pac. 
268. 



50 THE NEW ERA. 

"FIRST, that the present system in New York 
rests on a basis that is economically unwise and un- 
fair, and that in operation it is wasteful, uncertain and 
productive of antagonism between workmen and em- 
ployers. 

SECOND, that it is satisfactory to none and toler- 
able only to those employers and workmen who prac- 
tically disregard their legal rights and obligations to 
fairly share the burden of accidents in industries. 

THIRD, that the evils of the system are most 
marked in hazardous employments, where the trade 
risk is high and serious accidents frequent. 

FOURTH, that as a matter of fact, workmen in the 
dangerous trades do not, and practically cannot, pro- 
vide for themselves adequate accident insurance, and 
therefore, the burden of serious accidents falls on the 
workmen least able to bear it, and brings many of 
them and their families to want." 

The legislature enacted into law the recommen- 
dations of the commission but the statute v^as later 
declared unconstitutional by the Court of Appeals 
of the State of New York, ' on the ground that it 
made the employer liable, although without fault, in 
a suit for damages, without regard to the fault of 
the injured employee, short of willful and serious 
misconduct. An amendment to the constitution of 
the State of New York was adopted in 1913 to 
overcome the objections raised in the Ives case and 
another compensation act was then passed. It is 
interesting to note that about the same time a simi- 
lar statute was held constitutional by the supreme 

' Ives vs. The South Buffalo Railway Co. 201 N. Y. 271. 



THE NEW ERA. 51 

court of the State of Washington, that court re- 
fusing to follow the New York decision. 

In 1910 the American Bar Association recogniz- 
ing the desirability from a sociological standpoint 
of doing away with the long established but out- 
grown common law rules in accident cases, 
appointed a committee to draft an equitable com- 
pensation act and after a careful investigation cov- 
ering a period of three years the committee made 
the following recommendations relative to that 
subject: 

1st. It should be compulsory and exclusive of other 
remedies. 

2nd. It should apply generally to industrial organiza- 
tions above a certain limit of size. 

3rd. It should apply to all accidents arising out of 
and in the course of such industrial opera- 
tions regardless of the fault of anyone, self 
inflicted injuries not being counted as acci- 
dents. 

4th. The compensation should be adjusted by a 
prompt, simple and inexpensive procedure. 

5th. The compensation should be paid in regular in- 
stallments continuing during the disability or 
in case of death during reasonable periods of 
dependency of the beneficiaries. 

6th. The compensation should be properly propor- 
tioned to the wage received before the injury, 
having due regard, however, in proper cases 
to prospective wages ; and the scale so far as 
possible should divide the wage loss sustained 
by the employees and their dependents equally 
between them and their employers. 



52 THE NEW ERA. 

7th. The compensation should be paid with as near 
absolute certainty as possible, in the most 
convenient manner, and there should be ade- 
quate security for deferred payments. 

The report further says that the prevention of 
industrial accidents is a very important branch of 
the subject referred to and urges that every effort 
be made to procure the adoption of uniform rules 
for the proper safeguarding of industrial employees 
from accidents, and asserts that this element 
should always be given a most prominent position 
in connection with any schemes for compensation 
for industrial accidents. 

Compensation laws have been adopted in thirty- 
two states and three territories in the United 
States: Alaska, Arizona, California, Colorado, 
Connecticut, Hawaii, Illinois, Indiana, Iowa, Kan- 
sas, Kentucky, Louisiana, Maine, Maryland, Mas- 
sachusetts, Michigan, Minnesota, Montana, Ne- 
braska, Nevada, New Hampshire, New Jersey, 
New York, Ohio, Oklahoma, Oregon, Pennsyl- 
vania, Porto Rico, Rhode Island, Texas, Vermont, 
Washington, West Virginia, Wisconsin and Wy- 
oming; in addition a federal compensation law was 
passed September, 1916 by the Congress of the 
United States, for the benefit of federal employees. 

In the following states the law is optional as to 
all classes of employers : Colorado, Connecticut, Il- 
linois, Kansas, Massachusetts, Minnesota, Nebras- 



THE NEW ERA. 53 

ka, New Hampshire, Oregon, Rhode Island, Texas, 
Vermont, and West Virginia. 

In the following states the law is elective as to 
private employers and compulsory as to public em- 
ployers: Indiana, Iowa, Louisiana, Maine, Michi- 
gan, Montana, Nevada, New Jersey, Pennsylvania, 
and Wisconsin. In the following states the law is 
compulsory as to all employers: Arizona, Califor- 
nia, New York, Maryland, Ohio, Oklahoma, Wash- 
ington, and Wyoming. New York has two laws, 
one elective and the other compulsory, the latter 
covering hazardous employments. 

On the first day of October, 1912, a compensa- 
tion act became operative in the State of Rhode 
Island. The act provides that in an action to re- 
cover damages for personal injury sustained by 
accident by an employee arising out of and in the 
course of his employment, or for death resulting 
from personal injury so sustained, it shall not be 
a defense: (a) That the employee was negligent; 
(b) That the injury was caused by the negligence 
of a fellow employee; (c) That the employee has 
assumed the risk of injury. 

The act does not apply to actions to recover dam- 
ages for personal injuries, or for death resulting 
from personal injuries, sustained by employees en- 
gaged in domestic service or agriculture, nor does 
it apply to employers who employ five or less work- 
men or operatives regularly in the same business, 



54 THE NEW ERA. 

but such employers may elect to become subject to 
the provisions of this act. 

The act does not apply to actions to recover dam- 
ages for personal injuries, or for death resulting 
from personal injuries, sustained by employees of 
an employer who has not elected to become subject 
to its provisions. 

The election on the part of the employer is made 
by filing with the commissioner of industrial statis- 
tics a written statement to the effect that he accepts 
the provisions of the act, and by giving reasonable 
notice of such election to his workmen, by posting 
and keeping continuously posted copies of such 
statement in conspicuous places about the place 
where his workmen are employed; the filing of 
which statement and the giving of which notice 
operates to subject the employer to the provisions 
of the act and all acts amendatory thereof for the 
term of one year from the date of the filing of such 
statement, and thereafter, without further act on 
his part, for successive terms of one year, each, un- 
less the employer shall, at least sixty days prior to 
the expiration of such first or any succeeding year, 
file with said commissioner a notice in writing to 
the effect that he desires to withdraw his election to 
be subject to the provisions of the act and shall give 
reasonable notice to his workmen as above orovided. 



CHAPTER VI 

An employee of an employer who elects to be- 
come subject to the provisions of the act is held to 
have waived his right of action at common law to 
recover damages for personal injuries, if he shall 
not have given his employer at the time of his con- 
tract of hire notice in writing that he claims such 
right, and within ten days thereafter have filed a 
copy thereof with the commissioner of industrial 
statistics, or, if the contract of hire was made before 
the employer so elected, if the employee shall not 
have given the said notice and filed the same with 
said commissioner within ten days after notice by 
the employer, as above provided, of such election; 
and such waiver shall continue in force for the term 
of one year, and thereafter without further act on 
his part, for successive terms of one year, each, 
unless such employee at least sixty days prior to 
the expiration of such first or any succeeding year, 
files with the said commissioner a notice in writing 
to the effect that he desires to claim said right of 
action at common law and within ten days there- 
after gives notice thereof to his employer. 

A minor working at an age legally permitted un- 

(55) 



56 THE NEW ERA. 

der the laws of Rhode Island is deemed sui juris and 
no other person shall have any cause of action or 
right to compensation for an injury to such minor 
employee except as expressly provided in the act; 
but if said minor has a parent living or a guardian, 
such parent or guardian, as the case may be, may 
give the notice and file a copy of the same, and such 
notice binds the minor in the same manner that adult 
employees are bound under the provisions of the 
act. In case no such notice is given, such minor is 
held to have waived his right of action at common 
law to recover damages for personal injuries. Any 
employee, or the parent or guardian of any minor 
employee, who has given notice to the employer that 
he claimed his right of action at common law may 
waive such claim by a notice in writing which shall 
take effect five days after the delivery to the em- 
ployer or his agent. 

The right to compensation for an injury, and the 
remedy therefor granted by the act, is in lieu of all 
rights and remedies as to such injury now existing, 
either at common law or otherwise. 

If an employee who has not given notice of his 
claim of common law rights of action or who has 
given notice and has waived the same receives a 
personal injury by accident arising out of and in 
the course of his employment, he is entitled to com- 
pensation from an employer who has elected 
to become subject to the provisions of the act. 

No compensation is allowed for the injury or 



THE NEW ERA. 57 

death of an employee where it is proved that his 
injury or death was occasioned by his willful inten- 
tion to bring about the injury or death of himself 
or of another, or that the same resulted from his 
intoxication while on duty. 

No compensation for loss of certain parts of 
the body is paid under the act for any injury which 
does not incapacitate the employee for a period of 
at least two weeks from earning full wages, but, if 
such incapacity extends beyond the period of two 
weeks, compensation begins on the fifteenth day 
after the injury. 

During the first two weeks after the injury the 
employer is required to furnish reasonable medical 
and hospital services, and medicines when they are 
needed, the amount of the charge for such services 
to be fixed, in case of the failure of the employer 
and employee to agree, by the superior court. 

If death results from the injury, the employer 
must pay the dependents of the employee wholly 
dependent upon his earnings for support at the time 
of his injury a weekly payment equal to one-half his 
average weekly wages, earnings, or salary, but not 
more than ten dollars nor less than four dollars a 
week, for a period of three hundred weeks from the 
date of the injury. But if the dependent of the em- 
ployee to whom the compensation is payable upon 
his death is the widow of such employee, upon her 
death the compensation thereafter payable under 
this act must be paid to the child or children of the 



58 THE NEW ERA. 

deceased employee, including adopted and step- 
children, under the age of eighteen years, or over 
said age, but physically or mentally incapacitated 
from earning, dependent upon the widow at the 
time of her death. In case there be more than one 
child thus dependent, the compensation is divided 
equally among them. If the employee leaves de- 
pendents only partly dependent upon his earnings 
for support at the time of his injury, the employer 
must pay such dependents for a period of three hun- 
dred weeks from the date of the injury a weekly 
compensation equal to the same proportion of the 
weekly payments therein provided for the benefit 
of persons wholly dependent as the amount contri- 
buted annually by the employee to such partial de- 
pendents bears to the annual earnings of the de- 
ceased at the time of injury. When weekly pay- 
ments have been made to an injured employee be- 
fore his death, the compensation to dependents 
begins from the date of the last of such payments, 
but does not continue more than three hundred 
weeks from the date of the injury. If the deceased 
leaves no dependents at the time of the injury, the 
expense of burial and last sickness not in excess of 
two hundred dollars is allowed. 

The following persons are conclusively presumed 
to be wholly dependent for support upon a deceased 
employee : 

(a) A wife upon a husband with whom she lives 



THE NEW ERA. 59 

or upon whom she is dependent at the time of his 
death. 

(b) A husband upon a wife with whom he lives 
or upon whom he is dependent at the time of her 
death. 

(c) A child or children, including adopted and 
step-children, under the age of eighteen years, or 
over said age, but physically or mentally incapaci- 
tated from earning a living, upon the parent with 
whom he is or they are living or upon whom he or 
they are dependent at the time of the death of such 
parent, there being no surviving dependent parent. 
In case there be more than one child thus dependent, 
the compensation is divided equally among them. 

In all other cases questions of entire or partial 
dependency are determined in accordance with the 
facts existing at the time of the injury. In such 
other cases, if there be more than one person wholly 
dependent, the compensation is divided equally 
among them, and persons partly dependent, if any, 
receive no part thereof during the period in which 
compensation is paid to persons wholly dependent. 
If there is no one wholly dependent and more than 
one person partly dependent, the compensation is 
divided among them according to the relative extent 
of their dependency. 

No person is considered a dependent unless he be 
a member of the employee's family or next of kin, 
wholly or partly dependent upon the wages, earn- 



60 THE NEW ERA. 

ings or salary of the employee for support at the 
time of the injury. 

If the employee dies as a result of the injury leav- 
ing no dependents at the time of the injury, the 
employer must pay, in addition to any compensation 
provided for in the act the reasonable expense of 
his last sickness and burial, not to exceed two hun- 
dred dollars. 

While the incapacity for work resulting from the 
injury is total, the employer must pay the injured 
employee a weekly compensation equal to one-half 
his average weekly wages, earnings, or salary, but 
not more than ten dollars nor less than four dol 
lars a week for the period of five hundred weeks 
from the date of the injury. In the following cases 
it is conclusively presumed that the injury resulted 
in permanent total disability, to wit : The total and 
irrevocable loss of sight in both eyes, the loss of 
both feet at or above the ankle, the loss of both 
hands at or above the wrist, the loss of one hand and 
one foot, an injury to the spine resulting in per- 
manent and complete paralysis of the legs or arms, 
and an injury to the skull resulting in incurable im- 
becility or insanity. 

While the incapacity for work resulting from the 
injury is partial, the employer must pay the injured 
employee a weekly compensation equal to one-half 
the difference between his average weekly wages, 
earnings, or salary, before the injury and the aver- 
age weekly wages, earnings, or salary which he is 



THE NEW ERA. 61 

able to earn thereafter, but not more than ten dol- 
lars a week for a period of three hundred weeks 
from the date of the injury. 



CHAPTER VII 

In cases involving the following specified injuries 
the following amounts are paid in addition to all 
other compensation provided for in the act : 

(a) For the loss by severance of both hands at or 
above the wrist, or both feet at or above the ankle, 
or the loss of one hand and one foot, or the entire 
and irrevocable loss of the sight of both eyes, one- 
half of the average weekly wages, earnings, or sal- 
ary, of the injured person, but not more than ten 
dollars nor less than four dollars a week, for a 
period of one hundred weeks, (b) For the loss by 
severance of either hand at or above the wrist, or 
either foot at or above the ankle, or the entire and 
irrevocable loss of the sight of either eye, one-half 
the average weekly wages, earnings, or salary of 
the injured person, but not more than ten nor less 
than four dollars a week, for a period of fifty weeks, 
(c) For the loss by severance at or above the 
second joint of two or more fingers, including 
thumbs, or toes, one-half the average weekly wages, 
earnings, or salary of the injured person, but not 
more than ten dollars nor less than four dollars a 
week, for a period of twenty-five weeks, (d) For 

(62) 



THE NEW ERA. 63 

the loss by severance of at least one phalange of a 
finger, thumb, or toe, one-half the average weekly- 
wages, earnings, or salary of the injured person, 
but not more than ten dollars nor less than four 
dollars a week, for a period of twelve weeks. 

Where the employer has been accustomed to pay 
to the employee a sum to cover any special expense 
incurred by said employee by the nature of his em- 
ployment, the sum so paid shall not be reckoned as 
part of the employee's wage. The fact that an em- 
ployee has suffered a previous injury, or received 
compensation therefor, does not preclude compen- 
sation for a later injury or for death ; but in deter- 
mining the compensation for the later injury or 
death, his ''average weekly wages" is such sum as 
will reasonably represent his weekly earning ca- 
pacity at the time of the later injury, in the employ- 
ment in which he was working at such time. 

No savings or insurance of the injured employee, 
independent of the act, can be taken into consid- 
eration in determining the compensation to be paid, 
nor are benefits derived from any other source than 
the employer to be considered in fixing the compen- 
sation under this act. Any employer who refuses 
or delays payment under this act on account of the 
receipt by any injured employee of such savings, 
insurance or benefits, is deemed guilty of a misde- 
meanor, and on conviction thereof is liable to a 
fine of not less than one hundred dollars nor more 



64 THE NEW ERA. 

than five hundred dollars, or imprisonment not ex- 
ceeding one year or both. 

The compensation payable under the act in case 
of the death of the injured employee goes to his 
legal representatives; or, if he has no legal repre- 
sentative, to his dependents entitled thereto, or, if 
he leaves no such dependents, to the person to whom 
the expenses for the burial and last sickness are due. 
If the payment is made to the legal representative 
of the deceased employee, it must be paid by him to 
the dependents or other person entitled thereto 
under this act. All payments of compensation 
under the act cease upon the death of the employee 
from a cause other than or not induced by the in- 
jury for which he is receiving compensation. 

No proceedings for compensation for an injury 
under the act can be maintained unless notice of 
the injury is given to the employer within thirty 
days after the happening thereof, and unless the 
claim for compensation with respect to such injury 
is made within one year after the occurrence of the 
same, or, in case of the death of the employee, or in 
the event of his physical or mental incapacity, with- 
in one year after death or the removal of such 
physical or mental incapacity. 

Such notice must be in writing and must state in 
ordinary language the nature, time, place and cause 
of the injury, and the name and address of the per- 
son injured and must be signed by the person in- 
jured, or by a person in his behalf, or, in the event 



THE NEW ERA. 65 

of his death, by his legal representative, or by a 
dependent, or by a person in behalf of either. 

Such notice must be served upon the employer, 
by delivering the same to the person on whom it is 
to be served, or by leaving it at his last known resi- 
dence or place of business, or by sending it by regis- 
tered mail addressed to the person to be served, or, 
in the case of a corporation, to the corporation it- 
self, at his or its last known residence or place of 
business ; and such mailing of the notice constitutes 
complete service. 

A notice will not be held invalid or insufficient by 
reason of any inaccuracy in stating the nature, time, 
place or cause of the injury, or the name and ad- 
dress of the person injured, unless it is shown that 
it was the intention to mislead and the employer 
was in fact misled thereby. Want of notice is not 
a bar to proceedings under this act, if it be shown 
that the employer or his agent had knowledge of the 
injury or that failure to give such notice was due to 
accident, mistake or unforseen cause. 

The employee, after an injury, at reasonable 
times during the continuance of his disability, if so 
requested by his employer must submit himself to 
an examination by a physician or surgeon author- 
ized to practice medicine under the laws of the state, 
furnished and paid by the employer. The employee 
shall have the right to have a physician, provided 
and paid by himself, present at such examination. 
Moreover, any justice of the superior court may, 



66 THE NEW ERA. 

at any time after an injury, on the petition of the 
employer or employee, appoint a competent and im- 
partial physician or surgeon to act as a medical 
examiner, and the reasonable fees of such medical 
examiner as fixed by the justice appointing him 
must be paid by the party moving for such appoint- 
ment. 

Such medical examiner being first duly sworn to 
the faithful performance of his duties before the 
justice appointing him or clerk of the court is 
authorized to examine the injured employee in order 
to determine the nature, extent and probable dura- 
tion of the injury. The medical examiner is required 
to file a report of every examination made of the 
employee in the office of the clerk of the superior 
court, and said report may be produced in evidence 
in any hearing or proceeding to determine the 
amount of compensation due such employee under 
the provisions of this act. If such employee refuses 
to submit himself for any examination provided for 
in this act, or in any way obstructs any such ex- 
amination, his rights to compensation are suspended 
and his compensation during such period of suspen- 
sion may be forfeited. 

No claim for compensation under the act, or 
under any alternative scheme is assignable, or sub- 
ject to attachment, or liable in any way for any 
debts. 

The claim for compensation under the act is en- 
titled to a preference over the unsecured debts of 



THE NEW ERA. 67 

the employer thereafter contracted to the same 
amount as the wages of labor are now preferred by 
the laws of this state. 

In case payments have continued for not less 
than six months either party may, upon due notice 
to the other party, petition the superior court for 
an order commuting the future payments to a lump 
sum. Such petition upon presentation to the su- 
perior court may be summarily granted where it is 
shown to the satisfaction of the court that the pay- 
ment of a lump sum in lieu of future weekly pay- 
ments will be for the best interest of the person or 
persons receiving or dependent upon such compen- 
sation, or that the continuance of weekly payments 
will, as compared with lump-sum payments, entail 
undue expense or undue hardship upon the em- 
ployer liable therefor, or that the person entitled to 
compensation has removed or is about to remove 
from the United States. Where the commutation is 
ordered the superior court fixes the lump sum 
to be paid at an amount which will equal the total 
sum of the probable future payments, capitalized 
at their present value upon the basis of interest cal- 
culated at five per centum per annum with annual 
rests. Upon paying such amount the employer is 
discharged from all further liability on account of 
the injury or death, and is entitled to a duly exe- 
cuted release, upon filing which, or other due proof 
of payment, the liability of such employer under any 



68 THE NEW ERA. 

agreement, award, findings, or decree shall be dis- 
charged of record. 

If the employer and the employee reach an agree- 
ment in regard to compensation under the act all 
parties must file a memorandum of such agreement 
duly signed in the office of the clerk of the superior 
court having jurisdiction of the matter, and the 
clerk is required to thereupon present said agree- 
ment to a justice of the superior court, and when 
approved by the justice the agreement becomes en- 
forceable by said superior court by any suitable pro- 
cess, including execution against goods, chattels 
and real estate, and including proceedings for con- 
tempt for willful failure or neglect to obey the pro- 
visions of said agreement. No appeal lies from the 
agreement thus approved unless upon allegation 
that such agreement has been procured by fraud or 
coercion. The agreement can be approved by the 
justice only when its terms conform to the provi- 
sions of the act. When death has resulted from 
the injury and the dependents of the deceased em- 
ployee entitled to compensation are, or the appor- 
tionment thereof among them is, in dispute, such 
agreement may relate only to the amount of com- 
pensation. 

If the employer and employee fail to reach an 
agreement in regard to compensation under the act, 
either employer or employee, and when death has 
resulted from the injury and the dependents of the 
deceased employee entitled to compensation are, or 



THE NEW ERA. 69 

the apportionment thereof among them is, in dis- 
pute, any person in interest may file in the office 
of the clerk of the superior court having jurisdic- 
tion of the matter, a petition in the nature of a 
petition in equity setting forth the names and resi- 
dences of the parties, the facts relating to employ- 
ment at the time of the injury, the cause, extent 
and character of the injury, the amount of wages, 
earnings, or salary received at the time of the in- 
jury, and the knowledge of the employer or notice 
of the occurrence of the injury, and such other facts 
as may be necessary and proper for the information 
of the court, and shall state the matter in dispute 
and the claims of the petitioner with reference 
thereto. Within four days after the filing of the 
petition, a copy thereof, attested by the petitioner 
or his attorney, must be served upon the employer 
in the same manner as a writ of summons in a civil 
action. 



CHAPTER VIII 

Within ten days after the filing of the petition, 
the employer must file an answer to said petition, 
together with a copy thereof for the use of the pe- 
titioner, which shall state the claims of the employer 
with reference to the matter in dispute as disclosed 
by the petition. No pleadings other than petition 
and answer are required to bring the cause to a 
hearing for final determination. The superior 
court may grant further time for filing the answer 
and allow amendments of said petition and answer 
at any stage of the proceedings. If the respondent 
does not file an answer, the cause shall proceed 
without formal default or decree pro confesso. 

The petition is in order for assignment for hear- 
ing on the motion day which occurs next after fif- 
teen days from the filing of the petition. Upon the 
days upon which said petition is in order for 
hearing it takes precedence of other cases upon 
the calendar, except ejectment cases. 

The justice to whom said petition is referred is 
required to hear such witnesses as may be presented 
by each party, and in a summary manner decide the 
merits of the controversy. He must file a written 
decision with the clerk, and enter a decree thereon. 

(70) 



THE NEW ERA. 71 

The decree is enforceable by said superior court by 
any suitable process, including execution against 
goods, chattels and real estate, and including pro- 
ceedings for contempt for willful failure or neglect 
to obey the provisions of said decree. The decree 
must contain findings of fact, which, in the absence 
of fraud, are conclusive. The superior court 
may award as costs the actual expenditures but no 
counsel fees. 

Any person aggrieved by the final decree of the 
superior court under the act may appeal to the su- 
preme court upon any question of law or equity 
decided adversely to the appellant by said final de- 
cree or by any proceeding or ruling prior thereto 
appearing of record. To perfect an appeal the 
procedure is as follows: Within ten days after 
entry of said final decree the appellant must file a 
claim of appeal and, if a transcript of the testimony 
and rulings or any part thereof be desired, a written 
request therefor. Within such time as the justice 
of the superior court who heard the petition, or, 
in case of his inability to act from any cause, within 
such time as any other justice thereof shall fix, 
whether by original fixing of the time, or by ex- 
tension thereof, or by a new fixing after any expira- 
tion thereof, the appellant must file reasons of 
appeal stating specifically all the questions of law 
or equity decided adversely to him which he desires 
to include in his reasons of appeal, together with 
a transcript of as much of the testimony and rulings 



72 THE NEW ERA. 

as may be required. The supreme court may allow 
amendments of said reasons of appeal. Upon the 
filing of said reasons of appeal and transcript, the 
clerk of the superior court is required to present 
the transcript to the justice who heard the cause 
for allowance. The justice after hearing and ex- 
amination, must restore the transcript to the files 
of the clerk with a certificate of his action thereon 
within twenty days after filing the transcript. 

Upon restoration of the transcript to the files, or, 
if there be no transcript, then upon the filing of the 
reasons of appeal, the clerk of the superior court 
is required to certify the cause and all papers to the 
supreme court. The claim of appeal suspends 
the operation of the decree appealed from, but, in 
case of default in taking the procedure required, 
such suspension ceases, and the superior court 
upon motion of any party may proceed as if no 
claim of appeal had been made, unless it be made 
to appear to the superior court that the default no 
longer exists. Any court day in the supreme court 
is a motion day for the purpose of hearing a 
motion to assign the appeal for hearing. 

The supreme court after hearing any appeal may 
determine the same, and affirm, reverse or modify 
the decree appealed from, and may itself take, or 
cause to be taken by the superior court, such fur- 
ther proceedings as shall seem just. If a new de- 
cree be necessary, it may be framed by the supreme 
court for entry by the superior court. Thereupon 



THE NEW ERA. 73 

the cause is to be remanded to the superior court for 
such further proceedings as may be necessary. 

No process for the execution of a final decree of 
the superior court from which an appeal has been 
taken can issue until the expiration of ten days 
after the entry thereof, unless all parties against 
whom such decree is made waive an appeal by^a 
writing filed with the clerk or by causing an entry 
thereof to be made on the docket. If, in the course 
of the proceedings in any cause, any question of 
law arises which in the opinion of the superior 
court is of such doubt and importance, and so 
affects the merits of the controversy, that it ought 
to be determined by the supreme court before fur- 
ther proceedings, the superior court may certify 
such question to the supreme court for that purpose, 
and stay all further proceedings except such as are 
necessary to preserve the rights of the parties. 

At any time before the expiration of two years 
from the date of the approval of an agreement, or 
the entry of a decree fixing compensation, and be- 
fore the expiration of the period for which com- 
pensation has been fixed by such agreement or 
decree, any agreement, award findings or decree 
may be from time to time reviewed by the superior 
court upon the application of either party, after due 
notice to the other party, upon the ground that the 
incapacity of the injured employee has subsequently 
ended, increased, or diminished. Upon such review 
the court may increase, diminish, or discontinue the 



74 THE NEW ERA. 

compensation from the date of the application for 
review, in accordance with the facts, or make such 
other order as the justice of the case may require, 
but no order changing the status existing prior to 
the application for review can be made. The find- 
ing of the court upon such riview shall be served 
on the parties and filed with the clerk of the court 
having jurisdiction, in like time and manner and 
subject to like disposition as in the case of original 
decrees. An agreement for compensation may be 
modified at any time by a subsequent agreement be- 
tween the parties approved by the superior court in 
the same manner as original agreements in regard 
to compensation are required to be approved. 

The superior court is required to prescribe forms 
and make suitable orders as to procedure adapted 
to secure a speedy, efficient and inexpensive disposi- 
tion of all proceedings under the act ; and in making 
such orders said court is not bound by the provisions 
of the General Laws relating to practice. In the 
absence of such orders, special orders may be made 
in each case. Proceedings may be brought either 
in the county where the accident occurred or in the 
county where the employer or employee lives or has 
a usual place of business. The court where any 
proceeding is brought has power to grant a change 
of venue. 

An employee's claim for compensation under the 
act is barred unless an agreement or a petition, as 
provided in the act, is filed within two years 



THE NEW ERA. 75 

after the occurrence of the injury, or, in case of 
the death of the employee, or, in the event of his 
physical or mental incapacity, within two years 
after the death of the employee or the removal of 
such physical or mental incapacity. If an employee 
receiving a weekly payment under the act ceases 
to reside in the state, or, if his residence at the time 
of the accident is in an adjoining state, the superior 
court, upon the application of either party, may in 
its discretion, having regard to the welfare of the 
employee and the convenience of the employer, 
order such payment to be made monthly or quar- 
terly instead of weekly. 

All questions arising under the act, if not settled 
by agreement of the parties interested therein must 
be determined by the superior court. 

Where the injury for which compensation is pay- 
able under the act was caused under circumstances 
creating a legal liability in some person other than 
the employer to pay damages in respect thereof, the 
employee may take proceedings both against that 
person to recover damages and against any person 
liable to pay compensation under the act for such 
compensation, but cannot have both damages and 
compensation; and if the employee has been paid 
compensation under the act, the person by whom 
the compensation was paid is entitled to indemnity 
from the person so liable to pay damages as afore- 
said, and, to the extent of such indemnity, is sub- 



76 THE NEW ERA. 

rogated to the rights of the employee to recover 
damages therefor. 

Any employer may enter into an agreement with 
his employees to provide a scheme of compensation, 
benefit, or insurance, in lieu of the compensation 
provided for in this act, subject to the approval of 
the superior court. Such approval may be granted 
only on condition that the scheme proposed pro- 
vides as great benefits as those provided by the 
act; and, if the scheme provides for contributions 
by employees, it must confer additional benefits at 
least equivalent to these contributions. No scheme 
which provides for contributions by employees will 
be approved which does not contain suitable provi- 
sions for the equitable distribution of any money 
or securities held for the purpose of the scheme, 
after due provision has been made to discharge the 
liabilities already incurred, if and when such cer- 
tificate is revoked or the scheme otherwise termi- 
nated. 

Every employer who has elected to become sub- 
ject to the provisions of the act must secure in one 
of the following ways the compensation for which 
he is or may become liable under said act : 

(a) By insuring and keeping insured against 
liability to pay such compensation in any stock or 
mutual company, or association, authorized to take 
such risks in this state; (b) by furnishing a sworn 
statement or other proof, from time to time reason- 
ably satisfactory to the commissioner of industrial 



THE NEW ERA. 



77 



statistics, of his financial ability to pay directly to 
injured employees or their dependents such com- 
pensation; (c) by furnishing security, indemnity, 
or a bond, reasonably satisfactory to said commis- 
sioner, guaranteeing the payment of such compen- 
sation, said bond to run to the said commissioner 
for the benefit of the employees and their depen- 
dents and with such indemnity or security shall be 
deposited with him; (d) by a combination of the 
last two of the foregoing methods. 



CHAPTER IX 

Every compensation insurance policy must con- 
tain provisions to the effect that as between the em- 
ployee and the insurer notice to and knowledge of 
the occurence of injury on the part of the employer 
is notice and knowledge on the part of the insurer ; 
that jurisdiction of the employer for the purposes 
of the act shall be jurisdiction of the insurer ; and 
that the insurer shall in all things be bound by and 
subject to the findings, judgments, orders and de- 
crees rendered against the employer for the pay- 
ment of compensation under the act. Every such 
policy must cover the entire liability of the employer 
under the act, and must contain an agreement by 
the insurer to the effect that the insurer shall be 
directly and primarily liable to the employee, and, 
in the event of his death, to his dependents, to pay 
to him or them the compensation, if any, for which 
the employer is liable. 

Every policy must also provide that the employee, 
or, in the event of his death, his dependents, shall 
have a first lien upon any amount which may be- 
come owing on account of such policy to the em- 
ployer from the insurer because of any accident to 

(78) 



THE NEW ERA. 79 

such employee, and that in case of the legal inca- 
pacity or inability of the employer to receive the 
said amount and pay it over to the employee or his 
dependents, the said insurer must pay the same 
directly to the said employee or his dependents, 
thereby discharging to the extent of such payment 
the obligations of the employer to the employee or 
his dependents; and no such policy is allowed to 
contain any provisions relieving the insurer from 
payment because of the employer's inability to pay 
on account of insolvency, bankruptcy, or otherwise, 
during the period that the policy is in force or the 
compensation remains owing. 

Any employee entitled to compensation from his 
employer under the act has, irrespective of any in- 
surance contract, the right to recover such compen- 
sation directly from the employer, and, in addition 
thereto, the right to enforce in his own name, either 
by making the insurer a party to the original peti- 
tion, or by filing a separate petition, the liability of 
any insurer who may have insured the employer 
against liability for such compensation. 

When any employer is insured against liability 
for compensation and the insurer has paid any com- 
pensation for which the employer was liable, or has 
assumed the liability of the employer therefor, the 
insurer is subrogated to all the rights and duties of 
the employer and may enforce such rights in its 
own name. 

If any employer fails to comply with these com- 



80 THE NEW ERA. 

pensation security provisions of the act he is liable 
for compensation to any injured employee or his 
dependents, according to the provisions of the act, 
or for damages in the same manner as if the em- 
ployer had not elected to become subject to the pro- 
visions of said act, at the option of such employee 
or his dependents, but such option must be exer- 
cised and notice thereof in writing given to the 
employer within thirty days after the accident to 
such employee, otherwise the employer shall be 
liable only for the compensation payable under this 
act by employers who have elected to become sub- 
ject to the provisions of said act. 

The writer confesses to having a decided opinion 
as to what constitutes a normal and just compen- 
sation act, and while he feels that the Rhode Island 
act is a benefit inasmuch as it is a recognition of the 
compensation principle, nevertheless he is per- 
suaded that the act is far from being a model in 
the field of compensation legislation. Its provisions 
must be changed in several vital particulars before 
it can be classed as a thoroughly just and righteous 
act. 

It is now generally conceded that the compensa- 
tion act does not bestow a privilege or grant a 
favor, but is only giving the workman what he is 
justly entitled to in industrial life. The per- 
centage of injuries resulting in permanent inca- 
pacity is small; more than one-half of all the dis- 
ability cases result in recovery within the fifteen 



THE NEW ERA. 81 

day period. The best statistics in this respect are 
furnished by Russia and Italy. In Italy reports 
show that out of 57,617 accidents occurring in a 
year 25.32 per cent, resulted in disability for a 
period of from six to ten days; 22.70 per cent, from 
eleven to fifteen days; 14.65 per cent, from sixteen 
to twenty days; 15.11 per cent, from twenty-one to 
thirty days; 12.77 per cent, from thirty-one to sixty 
days; 3.93 per cent, over sixty days. 

In Russia out of 57,196 accidents 23.5 per cent, 
lasted over seven days; 24.70 per cent, from eight 
to fourteen days; 12.10 per cent, from fifteen to 
twenty-one days; 6.81 per cent, from twenty-one 
to twenty-eight days; 11.35 per cent, from twenty- 
nine to sixty-three days; 1.28 per cent, over ninety 
days. These statistics show that the vast majority 
of cases receive no compensation benefit when there 
is a tw^o weeks w^aiting period, although the time 
when those affected by an accident most welcome 
assistance is when the injury occurs and before they 
have opportunity to adjust themselves to the 
changed conditions. 

Furthermore the disability allowance in Rhode 
Island and the other states with a similar law is 
inadequate. An injured workman should be al- 
lowed during the period of total disability an 
amount equal to 66 2-3 per cent, of his weekly 
wages with a maximum of fifteen dollars and a 
minimum of five dollars and it should continue dur- 
ing the period of disability. This amount of allow- 



82 THE NEW ERA. 

ance is operative in Massachusetts, New York, Ohio, 
Porto Rico, and is also provided for in the recent 
compensation law enacted by the United States 
government. California allows 65 per cent., 
Hawaii 60 per cent., Wisconsin 65 per cent.; in 
New York, Ohio, Wisconsin, and under the federal 
law the allowance continues for life in case of per- 
manent disability. California allows 65 per cent, 
for two hundred and forty weeks, and then 40 per 
cent, for life in case of permanent injury. In Wis- 
consin if a nurse be required the compensation is 
increased to 100 per cent, after ninety days. 

Practically all the foreign laws provide for com- 
pensation during life in case of permanent injury. 
In case of partial disability the workman should re- 
ceive 66 2-3 per cent, of the difference between his 
weekly earnings before his injury and his wage 
earning capacity after the injury, but not to exceed 
fifteen dollars nor less than five dollars. In case 
of death of the injured workman the widow should 
receive suitable compensation until her death or 
remarriage, and in the latter event a lump sum 
equal to two years' compensation should be granted 
her. The usual percentage allowed the widow in 
such cases is 35 per cent, of the workman's weekly 
wages and an allowance of 10 per cent, for each 
child under eighteen years of age, the total allow- 
ance for the widow and children not to exceed 
66 2-3 per cent, of such wages. In case there be 
no widow, the total allowance should be divided 



THE NEW ERA. 83 

among the decedent's dependents. New York, 
Pennsylvania, Minnesota, Hawaii, Lousiana and 
Nevada and the federal law make provision for the 
widow along the lines above stated, and lump sum 
payments are provided for in New York, Minne- 
sota, Oregon, Washington and West Virginia. 

The waiting period in all cases should be reduced 
from fourteen days to four days. The theory of the 
waiting period is that if the workman be compelled 
to wait a certain period before his compensation 
commences malingering in cases of trivial injuries 
will be prevented. Malingering has not been a 
serious matter in this country. In France where 
the greatest complaint has been made with regard 
to it, the answer of the Chamber of Deputies of 
that country to the same was to provide in connec- 
tion with the waiting period of four days that if the 
disability lasted more than ten days compensation 
should be payable from the first day, showing that 
the French legislators did not consider that the ma- 
lingering complaints were entitled to serious con- 
sideration. 

The federal law has a waiting period of three 
days, Iowa one week, Nevada five days, Ohio one 
week, Oregon no waiting period, Texas one week, 
West Virginia one week, Wisconsin one week, 
Louisiana one week. Massachusetts which for- 
merly had a waiting period of fourteen days has 
reduced the same to ten days. Under the Rhode 
Island act a man earning twelve dollars per week 



84 THE NEW ERA. 

has to be incapacitated for a period of one month 
to get twelve dollars, and it needs no argument to 
demonstrate that such an allowance is not fair 
compensation. An act changing the waiting period 
in Rhode Island from two weeks to one week is now 
before the Rhode Island legislature and should be 
acted upon favorably. 

One of the most important provisions of the 
present law, and a provision which should be im- 
mediately amended so as to do away with its present 
inequitable effect is that which relates to the matter 
of medical attendance upon the injured employee. 
This matter of medical service is of vital import- 
ance to the state as well as to the employer and his 
employee. The employee is interested in being 
made physically well in order that he may enjoy 
life in common with his fellowmen and be able to 
support and maintain his family in accordance with 
his station. The employer is interested in seeing 
that an injured workman has the best medical and 
surgical attendance, as proper treatment means a 
consequent reduction in the period of disability, and 
in many cases the restoration to activity of a skilled 
workman whose services may be of great value to 
the industry. The state, interested in the welfare 
of its people, wishes preserved to itself well and 
happy workmen instead of maimed and helpless de- 
pendents. The wording of the present law relating 
to this phase of the subject is as follows: ''During 
the first two weeks after the injury the employer 



THE NEW ERA. 85 

shall furnish reasonable medical and hospital ser- 
vices and medicine whenever needed. The amount 
of the charge for such services to be fixed by the 
Superior Court in case of the failure of the em- 
ployer and employee to agree/' 



CHAPTER X 

It is the understanding of the writer that a great 
many of the employers allow the injured employee 
to select the physician, on the other hand a great 
many employers deny to the employee this right and 
require him to submit to treatment by a physician or 
at a hospital selected by the employer. We think 
that any possible ambiguity as to whether, under 
the above section, the right to select the physician 
rests with the employer or employee should be done 
away with and that the act should provide explicitly 
that the injured employee shall have the right to 
nominate the physician. When an injury occurs to 
a workman the most natural thing upon his part is 
to ask that a physician of his choice be summoned. 
An intimate relationship exists between the physi- 
cian and the patient, and the latter is guided to a 
great extent by the advice of his physician in con- 
nection with his future action and treatment. The 
fact that an employee is under treatment of a doctor 
whom he trusts and in whom he has confidence 
plays an important part in the progress of his con- 
dition. It is neither fair nor satisfactory to require 
an injured man to place himself in the hands of a 

(86) 



THE NEW ERA. 87 

stranger who is to have absolute control over his 
physical well-being. We realize that compensation 
is not based upon sentiment but we submit that the 
injured workman being human must be treated as 
such. It is therefore submitted that it is better for 
all concerned to permit the employee to make his 
own selection. Indeed the only objection that can 
be urged to this is that it may promote malingering, 
and also that the doctors may pad their bills. Al- 
though the present law has been in force in this 
state for the past four years, and although many 
industries have permitted the employee to select his 
own physician, we do not know that there have been 
any complaints as to improper charging upon the 
part of the attending physicians. 

In the last report of the Commissioner of Indus- 
trial Statistics (1916) the following appears: ''In- 
surance companies paid out for the same purposes, 
(industrial accident compensation), $169,094.91, 
an average of $1.34 per person, or $0.70 less per 
capita in 1915 than in 1914, and $0.67 more per 
capita in 1915 than in 1913. The cost to employers 
carrying compensation insurance under the act, 
based on the 122,534 wage earners employed in 
1915, and the $390,750.38 paid by establishments 
under the act to insurance companies, was $3.14 per 
wage earner. If the cost to insurance companies 
carrying on business in Rhode Island in 1915 was 
$1.34 per wage earner on account of medical at- 
tention and compensation for injuries, and the per 



88 THE NEW ERA. 

capita premium $3.14, the difference of $1.80. per 
wage earner represents an amount to be charged up 
for the actual carrying on of compensation business 
and the necessary surplus to be laid aside for un- 
usual payments which may arise on account of 
catastrophies and for profits. The cost per wage 
earner to employers carrying compensation insur- 
ance under the act, based on the average number of 
wage earners employed, and the amount of pre- 
miums paid to insurance companies was $0.59 less 
per wage earner in 1915 than it was in 1914, and 
$0.27 per wage earner more than in 1913 which was 
largely an experimental year. The cost per wage 
earner to insurance companies for medical services 
was $0.45 per wage earner in 1915, against $0.64 
per capita in 1914, a decrease of $0.19, but an in- 
crease of $0.12 per capita over the cost of medical 
attention in 1913." 

We think that the doctors of this state can be 
trusted to do what is fair and right in the matter 
of attendance upon injured workmen and charges 
for such services. If, however, there should be 
any fear upon the part of any person in interest 
that unfairness would be practiced if the right be 
given the patient to select his own physician, then 
let a provision be incorporated in the law to the 
effect that if any physician encourages malingering 
or practices any fraud upon the act he shall be de- 
prived of his license to practice medicine in this 
state and shall be criminally prosecuted. The act, 



THE NEW ERA. 89 

it is to be noted, now contains provisions permitting 
the employer at any time to have a physician of his 
choice appointed to examine the injured workman, 
and in addition he may ask the Superior Court to 
appoint an impartial physician to make an exam- 
ination and report to the court. It would seem that 
these should be adequate safeguards against ma- 
lingering. 

A further objection to section five of the present 
act is that it limits the period of treatment to two 
weeks. It is absolutely necessary that an injured 
person should have proper medical treatment 
so long as he reasonably requires the same. The 
state itself is interested in seeing that an injured 
workman receives the best medical attention so 
long as the same may be necessary. Moreover, 
proper treatment, in addition to hastening recovery 
reduces the period of disability and, therefore, the 
cost of compensation. Most of the foreign laws 
recognize the need of such provision and grant full 
medical treatment. 

In this country California allows treatment for 
ninety days, Colorado for thirty days, Connecticut 
necessary treatment, Illinois eight weeks, Indiana 
thirty days, Kentucky ninety days, Louisiana rea- 
sonable treatment, Maryland necessary treatment, 
Massachusetts two weeks or indefinitely if the acci- 
dent board so orders, Michigan three weeks, Min- 
nesota ninety days, Nebraska twenty-one days, Ne- 
vada four months. New York sixty days, Ohio 



90 THE NEW ERA. 

necessary treatment, Porto Rico eight weeks, West 
Virginia reasonable treatment, Wisconsin ninety 
days, Federal law reasonable treatment. Thus it 
will be noted that a great many of our states have 
gone a long way in the direction of the best Euro- 
pean thought in this respect, and we feel that Rhode 
Island is behind the times in clinging to the two 
weeks period. 

Again, that part of section five of the act which 
virtually precludes the physician from enforcing his 
claim in case it be disputed is most unjust. The 
physician may render most meritorious services to 
both employee and employer in connection with a 
personal injury case; he may be able to save the 
life and limb of an injured employee, returning the 
man with a minimum loss of time to the industry, 
thus relieving the employer of a heavy compensa- 
tion charge, and yet if his reasonable bill be dis- 
puted he is remediless to recover his just claim in 
case the employee declines to institute legal pro- 
ceedings against the employer. 

The law should not permit the physician to be 
left in such a plight. In a recent article ' the writer 
referred to certain cases in which as counsel for 
a surgeon he had occasion to argue the construc- 
tion of section five of the act before the courts of 



^Workmen's Compensation Act and The Physician, published in 
Quarterly Bulletin of State Board of Health of Rhode Island, July, 
1916. 



THE NEW ERA. 91 

Rhode Island and to have same authoritatively 
passed upon. In one of the cases referred to a 
workman was injured in the course of his em- 
ployment and sustained a transverse fracture of 
the patella. His family physician who was sum- 
moned saw that the injury was a serious one and 
a skilled surgeon was called to perform a difficult 
operation. The operation was successful and the 
physician rendered a bill to the employer who 
turned the same over to an insurance company 
which was handling the case in behalf of the em- 
ployer. The agent of the insurance company de- 
clined to pay the bill unless a substantial reduction 
was made in the amount thereof. The surgeon 
stood firm for payment of the bill as rendered, 
stating that his charge was reasonable. The em- 
ployer refused to interfere stating that the matter 
was not in his hands. There being no way pro- 
vided under the compensation act by which the 
physician could proceed against the employer the 
surgeon was absolutely powerless to have the 
claim determined upon his own motion. 

The employee, however, being duly appreciative 
of the service rendered to him by the surgeon con- 
sented to bring a petition in his own name against 
the employer in order that the matter might be 
passed upon by the court. When this petition was 
filed the surgeon requested permission of the 
court to intervene, claiming that he was the real 
party in interest, since it was his claim for services 



92 THE NEW ERA. 

that was before the court. The court, howevci; 
held that the surgeon had no standing under the 
act and refused to allow him to intervene. 

The matter was then presented to the court upon 
petition of the employee and at the conclusion of 
the hearing thereof the presiding justice rendered 
a decision in favor of the surgeon for the full 
amount of the claim, stating that he thought the 
charge was just and reasonable. After this deci- 
sion the cause was appealed to the Supreme Court, 
where it is now awaiting final disposition. It will 
be seen that the only method under the present act 
by which a physician, in case his bill be disputed, 
can require payment from the employer is to enlist 
the services of the workman, and by basing a pe- 
tition on the ground of a theoretical dispute be- 
tween the employer and employee call the matter to 
the attention of the court. If the physician is un- 
able to enlist the aid of the employee, because of 
absence, unwillingness upon the part of the em- 
ployee to support such proceedings, or because of 
any one of a number of reasons that might be ad- 
vanced such as fear of loss of employment, unwill- 
ingness to incur expense, et cetera, the physician 
is remediless and is relegated to a possible action 
against the employee who usually has little, if any, 
means with which to meet the claim. 

One of the bills now before the legislature of this 
state has for its purpose the remodeling of section 
five so as to do away with the obnoxious features 



THE NEW ERA. 93 

herein noted. This bill in its essentials provides 
for the furnishing of medical attendance by the 
employer for the first four weeks after the injury, 
the privilege being given the employee to select his 
own physician. The physician is given the right 
in case of dispute to petition the superior court in 
his own name for a determination of the contro- 
versy. While this bill is not an ideal one, neverthe- 
less, it goes a long way in the direction of more 
equitable provision in the respects mentioned, and 
should receive the support of all fair-minded and 
forward-looking people. 

There should, however, be a further provision 
in connection with that amendment to the effect 
that if the matter be brought before the court upon 
petition of the physician, costs and counsel fees may 
be awarded by the court, if the end of justice so 
requires. It is manifestly unfair to require the 
physician, where he has a meritorious claim, to be 
obliged to try it out before the superior court, and 
after having it pronounced just by that court, to be 
obliged to go to the supreme court, as in the case 
above referred to, and, after final decision in his 
favor, to be obliged to bear all the expense of legal 
proceedings simply because the present law pro- 
vides that no counsel fees shall be awarded in any 
event upon any petition. In equity matters, our 
supreme and superior courts are empowered to 
award counsel fees and costs in anv case where 



94 THE NEW ERA. 

justice may require such action. There is no reason 
why a like provision should not be inserted in the 
compensation act. 



CHAPTER XI 

It may not be amiss to refer to a few of the de- 
cisions rendered by various courts in this country 
relative to the matter of medical attendance in com- 
pensation cases when the employer is required to 
provide suitable medical attendance. It has 
been held that when the law requires that the em- 
ployer shall provide for the injured employee proper 
medical and surgical attendance, the employer may 
use his own judgment and exercise his own choice 
so long as he does not make an unreasonable selec- 
tion as to the person who shall render such services 
and it is only when he fails to fulfill this duty that 
the employee may select a physician at the em- 
ployer's expense. Where it is shown that the em- 
ployer delays an unreasonable time in offering 
medical treatment to the employee, the latter may 
call in a physician of his choice and the employer 
will be responsible for the expense of the same. 
Proper medical attendance means that the same 
shall be furnished as soon as needed; if it is im- 
possible to procure such attendance in time for first 
aid it means that a physician should be put in charge 
of the case as soon as it is necessary to change the 

(95) 



96 THE NEW ERA. 

emergency dressing. If the employer does not do 
this he is precluded from insisting upon the right 
to supply medical treatment. Where an employer's 
foreman had knowledge of the injury on the day 
it happened and took no steps to furnish medical 
attendance until the following day, and the injured 
man in the meantime secured the services of an- 
other physician who continued to treat him until he 
was cured, it was held that the employer must pay 
the reasonable charge of the physician who ren- 
dered such services, on the ground that while the 
law gives the employer the right to select the physi- 
cian he must act promptly. 

The employer is not required to discover cases 
of personal injuries to their employees, the latter 
must see to it that notice of the injuries is promptly 
brought to the attention of the employer with the 
request that medical aid be provided. The injured 
employee is, however, only required to let his em- 
ployer or the employer's superintendent or other 
person in authority know that he has been injured. 
Knowledge of the fact of the injury on the part 
of any person in authority is sufficient notice to 
the employer of the need of necessary medical or 
surgical treatment to which the employee is entitled 
under the law. Where an emergency treatment is 
imperative as where a skull is fractured the em- 
ployer must pay the expense of the attending sur- 
geon even though the employer had no opportunity 
to tender treatment by his own physician. Where 



THE NEW ERA. 97 

a fracture is involved requiring the aid of scientific 
apparatus such as X-ray photographs the employee 
is justified in going at once to an expert in that line 
for a correct diagnosis of his case. The injured 
employee is justified in seeking emergency treat- 
ment on the day of his injury from any physician, 
unless specifically directed by the employer prior 
to securing such treatment as to where to go, and 
the charge for such emergency treatment is a 
proper charge against the employer. Where the 
employer believes that the disability was caused by 
disease and not by accident and fails to provide 
medical attendance and it is found later that the 
injury was caused by an accident the employer must 
pay a reasonable charge for medical services of the 
attending physician. 

Where the employer's physician denied that any 
disability was sustained by the employee, who 
claimed to have been injured, the employee if, in 
fact, he were disabled had a right to be treated by 
his own physician at the expense of the employer. 
This is on the ground that mistaken advice does 
not absolve the employer from the charge of fur- 
nishing medical attendance. Where an injured 
employee suffering from a fracture of the right 
clavicle was put in the hands of a country physician 
who did not have proper facilities for treating him 
the employee was held justified in going to a hos- 
pital and having his injuries attended to at the ex- 
pense of the employer. Where a member of a f ra- 



98 THE NEW ERA. 

ternity having sustained an injury called upon his 
lodge physician for such medical services as he was 
entitled to receive free of charge by reason of his 
said membership, the physician rendering the ser- 
vices was held not entitled to recover against the 
employer for the reasonable value thereof. 

Apropos the subject of medical attendance it may 
be of interest to note the following observations of 
the Wisconsin Industrial Commission contained in 
its report for the period 1914 to 1915: ^'The Wis- 
consin Act provides more liberal medical aid than 
any other Compensation Act in the United States. 
In this respect the law is eminently wise. On eco- 
nomic grounds alone it is cheaper for the employer 
to save an arm by an expensive operation than to 
pay indemnity for the loss of an arm. It is for the 
interest of the employer to give the best medical 
attendance; that it is also for the interest of the 
workman and of the community goes without say- 
ing. There is reason to believe, however, that medi- 
cal service in this state is costing too much. The 
Commission's records indicate that physicians and 
hospitals received over $400,000 for services ren- 
dered under the Compensation Act during the last 
fiscal year. This is nearly one-half the total amount 
paid directly to injure4 workmen and their families. 
It is probable that the compensation act has very 
greatly increased the income of the medical pro- 
fession as a whole. Hundreds of serious injuries 
which doctors formerly treated on a charity basis 



THE NEW ERA. 99 

are now paid cases. This is as it should be. The 
medical profession ought not to be called upon to 
take care of injured workmen for less than the ser- 
vice is fairly worth. On the other hand, since the 
pay is certain and the number of cases large, the 
fees should not be exorbitant. A great number of 
physicians, including the recognized leaders of their 
profession, have shown a spirit of co-operation and 
have rendered highly skilled service at very mod- 
erate cost. Some, however, have been disposed to 
feel that the employer or the insurance company is 
rich and to render bills based upon that assumption. 
Chapter 241 of the laws of 1915 gives the com- 
mission power to pass upon the reasonableness of 
m.edical and hospital bills in disputed cases. It is 
hoped that a basis of charge can be agreed upon 
which will be fair to all parties concerned.'' 

The writer is of the opinion that every compensa- 
tion law should provide for a commission of from 
three to five persons to carry out its provisions. One 
of the cardinal principles to be aimed at in this sort 
of legislation is that compensation be expeditiously 
granted and that the interest of the workman be 
properly safeguarded. The present law provides 
that the employer and the employee may enter into 
an agreement as to the compensation to be paid, 
subject to the approval of the Superior Court. Now 
the Superior Court is a very busy tribunal and the 
time of the justices thereof is fully occupied in giv- 
ing attention to the regular business of the court. 



100 THE NEW ERA. 

It is a physical impossibility for the Court to go 
into the merits of each of the thousands of compen- 
sation agreements that are yearly presented for 
approval and the result is that such approval be- 
comes more or less perfunctory. 

There is no power now possessed by anybody 
to hasten payment of compensation to needy and 
deserving claimants. Under the present system it 
is an easy matter to delay payment of compensa- 
tion for an appreciable length of time while a pe- 
tition seeking to enforce compensation wends its 
way through the courts. Under the present law if 
legal proceedings be instituted by an employee to 
recover compensation under the Act, three weeks 
at least must ensue before same can be heard. This 
results from the provision that a compensation pe- 
tition is not in order for assignment for hearing 
until the motion day which occurs next after fifteen 
days from the time of filing of the petition. As the 
regular motion day in our Superior Court is on 
Saturday of each week it is evident that the above 
mentioned period must intervene before hearing. 
An example of the hardship which sometimes re- 
sults from this situation was called to our attention 
recently. A father of a family of small children 
while operating a drop-press, so-called, lost the in- 
dex finger of his right hand. Owing to some dis- 
pute between the employer and an insurance carrier, 
compensation for the injury was not attended 
to although the employer had accepted the Act. 



THE NEW ERA. 101 

The workman was earning fourteen dollars a week 
at the time he was injured, but his living expenses 
consumed his earnings and it was impossible for 
him to accumulate any surplus. Finally his means 
became exhausted, and after a period of three 
months, the employee preferred a petition to the 
court, and after the expiration of three weeks more 
his petition was heard by the Presiding Justice of 
the Superior Court, and full compensation awarded 
him. During the interim between the filing and the 
hearing of the petition, the workman was dependent 
upon the charity of friends for the means with 
which to keep himself and his family from starva- 
tion. 

The writer has the highest praise for the way in 
which our Superior and Supreme Courts have met 
the questions presented to them under the com- 
pensation act. The judges of both courts have 
taken a broad, liberal and progressive view of the 
act; they have shown a keen appreciation of the 
great economic principles underlying this scheme 
of social justice. The Supreme Court, in a learned 
opinion by Mr. Justice Sweetland, announced as 
the law of this State a great humanitarian doctrine 
when in interpreting the act in the case of Donahue 
vs. B. A. Sherman's Sons Company, decided July 
5, 1916, ' it says: 

"Although we are of the opinion that, upon a strict 

construction of the statute, the respondent's appeal 

should be denied, it should not be overlooked that the 

act and like acts in the different states, are universally 

'39 Rhode Island Reports 373. 



102 THE NEW ERA. 

considered as of a remedial character, the provisions 
of which should be construed broadly and liberally 
in order to effectuate their purpose. This court in its 
former opinions has recognized the liberal spirit of 
this legislation and has been guided by that liberality 
in the construction of the provisions of the Rhode 
Island act, and in the application of those provisions 
to particular cases." 
The writer's experience in the trial of compen- 
sation cases before the Superior Court has been 
that the learned jurists in that court never seek 
to contract the provisions of or curtail the benefits 
under the act, but give effect to the act in an equit- 
able and just manner, and take a broad and liberal 
view of the claims of the workmen who seek relief 
under the act. 

The establishment of an industrial accident board 
would mean that the medium would be constantly 
at hand whereby disability cases would receive 
prompt investigation and attention by a body of 
men devoting their entire aitention to such matters, 
and the welfare of the injured person, who is unable 
as a general rule to look after himself, would be 
expeditiously and properly cared for. Cases of de- 
layed compensation and much financial suffering 
upon the part of the needy and deserving workman 
would be obviated. This commission of experts 
could not fail in addition to relieving the court of 
much labor and the state of much expense, to so 
mold the procedure under the law as to make the 
same an instrument of true justice, protecting fully 
the rights, interests and welfare of all concerned. 



CHAPTER XII. 

The constitutional validity of industrial accident 
compensation legislation has been established by the 
highest legal tribunal in this country — the Supreme 
Court of the United States — in decisions recently 
rendered wherein the principles underlying the com- 
pensation laws under review were considered at 
length, and the acts held valid/ When the f ramers 
of the earlier acts undertook the work of drafting 
compensation legislation they were confronted with 
the task of formulating laws which would survive 
objections that were bound to be urged against the 
constitutionality of the measures. 

In respect of this matter the draftsmen received 
no aid from the experiences of foreign nations 
because no question involving the validity of the 
acts of the lawmaking bodies could possibly arise 
under the European forms of government. In 
England whatever doubt may have existed in the 

^ New York Central Rd. Co. v. White 37 Sup. Ct. Rep. 247. 
Mountain Timber Co. vs. State of Wash. 37 Sup. Ct. Rep. 260. 
Hawkins v. Bleakly 37 Sup. Ct. Rep. 255. 

(103) 



104 THE NEW ERA. 

very early days with regard to the authority of 
parliament to legislate free from restraint, disap- 
peared in the time of Blackstone, as we find that 
eminent authority declaring that no matter what the 
nature of the act of parliament may be if the word- 
ing of it is clear ''there is no court that has power to 
defy the intention of the legislature/' * In France 
no reference is made to the judiciary in the present 
constitution of that country and this omission has 
given rise to the conclusion that the judiciary is to 
be regarded as a part of the executive department 
of the government. In Germany by federal legis- 
lation adopted in 1872 and 1873 the Reichstag was 
granted full power to legislate upon all matters re- 
lating to civil law and consequently the lawmaking 
bodies of that country have been at liberty to enact 
such legislation as they saw fit and it became the 
supreme law of the land and legally unassailable. 

In this country the federal and state judiciaries 
are constitutional creations. The province of the 
judiciary is to interpret the law in any proceeding 
that may be brought before it. The legislature, as 
the lawmaking body, is under constitutional obliga- 
tion to refrain from enacting laws in conflict with 
the constitution. If, therefore, the court finds in 
the determination of a matter which has been pre- 
sented to it for adjudication, that the legislative will 
is in conflict with the constitution it may declare the 

• Blackstonc's Commentaries Vol. 1 P. 91. 




THE NEW ERA. 105 

legislation invalid and thus over-ride the judgment 
of that department of the government. While it is 
the imperative duty of the court to decline to en- 
force unconstitutional legislation, the power of the 
court to nullify the will of the people as expressed 
through the lawmaking body is always exercised 
with caution, and only when the duty is plain and 
unmistakable. The presumption is that a state leg- 
islature will not violate the constitution and this 
presumption is so strong that where the action of 
the legislature is assailed as being violative of the 
constitution the court is bound to make every pos- 
sible presumption in favor of the validity of the law. 

Both state and federal courts may be required to 
pass upon questions of constitutional law. When- 
ever in course of the hearing of a cause before any 
court a question as to whether a statute conforms 
to the constitution is raised, the court must dispose 
of it. The decision of the state court settles the 
question as to the constitutional validity of an en- 
actment so far as it relates to the state constitution, 
and the federal court passes upon the questions 
raised when the validity of legislation is challenged 
in connection with the federal constitution. A state 
law may, therefore, be reviewed as to its constitu- 
tionality by both the state and federal tribunals. 

The recent decisions of the United States Su- 
preme Court in the New York, Washington and 
Iowa cases above referred to, are momentous in 
the economic history of our country and will 



106 THE NEW ERA. 

take rank with other great declarations of that 
august tribunal. Both the New York and Wash- 
ington acts which the court declared valid provide 
for compulsory compensation. Under the terms of 
the New York act, the employer may select one of 
three ways in which to insure the payment of the 
stipulated compensation, to wit, by insuring in a 
state fund or in a private stock company, or by fur- 
nishing satisfactory proof of his financial ability to 
pay the compensation. Under the Washington law, 
a state fund is established and all employers carry- 
ing on occupations designated in the act are com- 
pelled to contribute to this fund, and it further pro- 
vides that an employer must contribute to the fund 
whether injuries occur to his own employees or not, 
so that, no matter how careful the employer may be 
in conducting his business and notwithstanding the 
fact that in the operation of his industry no injuries 
are occasioned to his employees, he is required, 
nevertheless, to contribute a stated sum to the state 
fund equally with other employers in the same class, 
in order that sufficient funds may always be on hand 
to compensate workmen who are injured elsewhere. 
The Iowa act is an elective law of the same general 
character as those in force in our various common- 
wealths; it contains a specific provision requiring 
the employer to insure his liability in some corpora- 
tion or association approved by the department of 
insurance. 

The principal objections urged in opposition to 



THE NEW ERA. 107 

the validity of those acts were : That the employer's 
property was taken without due process of law, be- 
cause he is subjected to a liability for compensation 
without regard to any neglect or default on his part, 
and in spite of the fact that the injury may be the 
result solely of fault on part of the employee ; also, 
that both employer and employee were deprived of 
the liberty of acquiring property because they were 
prevented from making such agreement as they 
chose respecting the forms of the employment. 

In considering the constitutional question, the 
court said that the matter must be viewed from the 
standpoint of both the employer and employee ; that, 
if the statute be invalid against one, it was invalid 
against the other. After referring to the fact that 
it recognized the close relation of the rules govern- 
ing responsibility as between the employer and em- 
ployee in connection with the constitutional right to 
the enjoyment of liberty. Justice Pitney says that 
those rules of conduct may be altered by the legis- 
lature in the interest of the public. ''No person,'' 
says the court, ''has a vested interest in any rule of 
law entitling him to insist that it shall remain un- 
changed for his benefit." While querying as to 
the validity of legislation abolishing established 
legal rules without providing a fair substitute, the 
Justice observes that compensation statutes are not 
open to such objection; that while setting aside one 
body of rules another reasonably just system is 
established in its stead. In considering the ques- 



108 THE NEW ERA. 

tion as to the reasonableness and justice of such 
legislation, the court remarks, ''It is plain that, on 
the grounds of natural justice, it is not unreasonable 
for the State, while relieving the employer from 
responsibility for damages measured by common 
law standards and payable in cases where he or 
those for whose conduct he is answerable are found 
to be at fault, to require him to contribute a reason- 
able amount, and according to a reasonable and 
definite scale, by way of compensation for the loss 
of earning power incurred in the common enter- 
prise, irrespective of the question of negligence, in- 
stead of leaving the entire loss to rest where it may 
chance to fall — that is, upon the injured employee 
or his dependents." Replying to the criticism that 
the act creates liability without fault, the court says, 
''This is not a novelty in the law. The common law 
liability of the carrier, of the inn-keeper, of him 
who employed fire or other dangerous agency or 
harbored a mischievous animal, was not dependent 
altogether upon question of fault or negligence.*' 
As to the objection that the legislation interfered 
with freedom of contract, the court remarks that 
while admitting that such legislation did limit the 
liberty of the employer and employee to contract as 
they saw fit with respect to the employment, never- 
theless, that the legislation was fairly supportable 
as a proper exercise of the police power of the 
state. ''The subject matter in respect of which free- 
dom of contract is restricted," says the court, "is the 



THE NEW ERA. 109 

matter of compensation for human life or limb lost, 
or disability incurred, in the course of hazardous 
employment, and the public has a direct interest in 
this as affecting the common welfare. The whole 
is no greater than the sum of all the parts, and when 
the individual health, safety, and welfare are sacri- 
ficed or neglected, the State must suffer/' In up- 
holding the right of the State to make compensation 
compulsory, the court says, ''It is evident that the 
consequences of a disabling or fatal injury are pre- 
cisely the same to the parties immediately affected, 
and to the community, whether the approximate 
cause be culpable or innocent. Viewing the entire 
matter, it cannot be pronounced arbitrary and un- 
reasonable for the State to impose upon the em- 
ployer the absolute duty of making a moderate and 
definite compensation in money to every disabled 
employee, or in case of his death to those who were 
entitled to look to him for support, in lieu of the 
common-law liability confined to cases of negli- 
gence/' In considering the compulsory state in- 
surance provision of the Washington act. Justice 
Pitney makes the following declaration, and this 
utterance is of such splendid character that it de- 
serves to be quoted in extenso : ''It seems to us that 
the considerations to which we have adverted are 
not to be deemed arbitrary and unreasonable from 
the standpoint of natural justice and are sufficient 
to support the State of Washington in concluding 
that the matter of compensation for accidental in- 



no THE NEW ERA. 

juries with resulting loss of life or earning capacity 
of men employed in hazardous occupations < is of 
sufficient public moment to justify making the entire 
matter of compensation a public concern, to be ad- 
ministered through state agencies. Certainly the 
operation of industrial establishments that in the 
ordinary course of things frequently and inevitably 
produce disabling or mortal injuries to the human 
being employed, is not a matter of wholly private 
concern. It hardly w^ould be questioned that the 
State might expend public moneys to provide hos- 
pital treatment, artificial limbs, or other like aid to 
persons injured in industry, and homes or support 
for the widows and orphans of those killed. ' Does 
direct compensation stand on a less secure ground ? 
A familiar exercise of state power is the grant of 
pensions to disabled soldiers and to the widows and 
dependents of those killed in war. Such legislation 
usually is justified as fulfilling a moral obligation 
or as tending to encourage the performance of the 
public duty of defense. But is the State powerless 
to compensate, with pensions or otherwise, those 
who are disabled, or the dependents of those whose 
lives are lost, in industrial occupations that are so 
necessary to develop the resources and add to the 
wealth and prosperity of the State ? A machine as 
well as a bullet may produce a wound, and the dis- 
abling effect may be the same. In a recent case, the 
Supreme Court of Washington said: 'Under our 
statutes the workman is the soldier of organized 



THE NEW ERA. Ill 

industry accepting a kind of pension in exchange 
for absolute insurance on his master's premises.' 
It is said that the compensation or pension under 
this law is not confined to those who are left without 
means of support. This is true. But is the State 
powerless to succor the wounded except they be re- 
duced to the last extremity? Is it debarred from 
compensating an injured man until his own re- 
sources are first exhausted ? This would be to dis- 
criminate against the thrifty and in favor of the 
improvident. The power and discretion of the 
State are not thus circumscribed by the Fourteenth 
Amendment." 

Our highest court has thus placed in the hands 
of the State the power to place upon the statute 
book such compensation legislation as may be 
deemed suitable and advisable for the promotion of 
the public welfare. Full power is granted to make 
such legislation compulsory and to establish any sort 
of reasonable system to make the payment of com- 
pensation absolute. Let each State therefore take 
advantage of the great opportunity thus presented 
to advance the public good, and let there be placed 
upon the statute books of all our commonwealths a 
system of compensation legislation, which, reflect- 
ing justice, righteousness and humanitarianism, will 
bring happiness and contentment to their people, 
thus, truly, carrying out the purpose of our great 
government as declared in the immortal Constitu- 
tion, — the greatest, the best and most profound ex- 
position of sound governmental doctrine which the 
world has ever known. 



APPENDIX A. 

Sttmmary of Compensation Laws in Force in the 
Principal States of the United States. 

Cai^ifornia. 

Applies to all employments, public and private. 
Is elective as to farm labor, domestic service and 
casual employment. Compulsory as to all other 
employments. 

All injuries arising out of and in course of the 
employment, unless due to intoxication or willful 
misconduct. 

Compensation begins on the fifteenth day after 
the employee leaves work. 

Employer furnishes such medical treatment as 
may be required at the time of the injury and with- 
in ninety days thereafter, but such time may be 
extended by the Commission. 

In case of total disability the employee receives 
65 per cent, of his average weekly earnings for two 
hundred and forty weeks; if permanent, 40 per 
cent., after the above period, for life; if temporary, 
the allowance is 65 per cent, of the average weekly 

113 



114 APPENDIX A 

earnings, the maximum for a single injury being 
three times the annual earnings. 

In case of partial disability, if the same be tem- 
porary, 65 per cent, of the weekly wage loss is 
allowed with a maximum compensation of three 
times the average annual earnings, the maximum 
period being two hundred and forty weeks. 

If death results from the injury total dependents 
are entitled to receive 65 per cent, of the average 
weekly earnings until the payments equal three 
times the average annual earnings, including burial 
expenses, and disability expenses, if any. 

Compensation settlements may be made by agree- 
ment of the parties, subject to the approval of the 
Commission. 

Disputes are settled by the Commission upon 
written application by any party in interest. 

The Commission has jurisdiction over every place 
of employment and is authorized to make rules and 
regulations for the safety of employees. 

Connecticut. 

Applies to all public and private employments, 
except casual employments, out-workers, or mem- 
bers of employer's family residing with him. Does 
not apply to employers having less than five em- 
ployees regularly employed. 

All injuries arising out of and in course of the 
employment, unless due to willful and serious mis- 
conduct, or intoxication. 



APPENDIX A 



IK 



Compensation commences on the eleventh day 
following disability. 

Employer furnishes reasonable and necessary 
medical treatment and the charge for the same is 
regulated by the prevailing fees in the community. 

For total disability 50 per cent, of the average 
weekly earnings with a maximum of ten dollars per 
week and a minimum of five dollars per week is 
allowed ; maximum period five hundred and twenty 
weeks. 

For partial disability 50 per cent, of the average 
loss of earning power is allowed with a maximum 
of ten dollars per week for not over three hundred 
and twelve weeks. 

If death results from the injury within two years 
50 per cent, of the average weekly earnings is 
allowed in case of dependency. 

IlvUNOIS. 

Applies to all public employments; officials and 
beneficiaries of an established pension fund are 
excepted. Applies also to all private employments, 
except casual or those not in the usual course of 
trade. 

There is a waiting period of six days in case of 
temporary total incapacity, but if the incapacity be 
permanent the compensation begins on the day fol- 
lowing the injury. 

Medical aid is furnished by the employer for 



116 APPENDIX A 

eight weeks after the injury to the extent of two 
hundred dollars. 

Total disability is compensated on the basis of 50 
per cent, of the average weekly earnings, with a 
maximum of twelve dollars per week and a mini- 
mum of six dollars per week. 

For permanent injuries the same rate prevails 
until the amount paid equals four times the average 
annual earnings or thirty-five hundred dollars, and 
thereafter an annual pension is allowed during life 
equal to eight per cent, of total previous payments 
with a minimum of ten dollars monthly. 

If death results provision is made for the depen- 
dent widow and children according to the degree 
of the dependency, with a maximum allowance of 
thirty-five hundred dollars and a minimum of six- 
teen hundred and fifty dollars. 

Payment of compensation may be settled by the 
parties or by an arbitrator designated by the Com- 
mission. All questions not otherwise settled are 
disposed of by the Commission. 

Indiana. 

Applies to all public and private employments, 
except casual, with the exception of farm laborers 
and domestic servants, but they may elect to com.e 
under the act. 

Compensation begins on the fifteenth day after 
the injury. 



APPENDIX A 117 

The employer furnishes medical attendance for 
thirty days after the injury. 

The compensation provided is 55 per cent, of the 
average weekly wages with a maximum of thirteen 
dollars and twenty cents per week and a minimum 
of five dollars and fifty cents per week; the maxi- 
mum period is five hundred weeks and the maxi- 
mum amount five thousand dollars. 

If death results total dependency is provided for 
on the basis of 55 per cent, of the average weekly 
wages for the remainder of the period between the 
time of death and three hundred weeks following 
the injury; partial dependents are provided for 
upon the above basis according to the degree of 
dependency. 

Compensation may be fixed by agreement subject 
to the approval of the Commission or by a member 
of the Commission upon application of either party. 
An award made by a member of the Board is sub- 
ject to review by the full board upon application. 
The award of the Board is conclusive as to ques- 
tions of fact but errors of law may be appealed to 
the appellate court for review. 

Applies to all employments public or private — 
domestic servants and farm laborers are excepted. 
The act is compulsory as to public employments and 
elective as to private employments. 

Compensation commences on the fifteenth day 
after the injury. 



118 



APPENDIX A 



The employer furnishes medical aid to the extent 
of one hundred dollars. 

For total disability 50 per cent, of the average 
weekly wages, with a maximum of ten dollars per 
week and a minimum of five dollars per week for a 
maximum period of four hundred weeks is allowed; 
partial disability has a maximum of three hundred 
weeks. 

If death results total dependency is provided for 
on the basis of 50 per cent, of the average weekly 
earnings with a maximum of ten dollars per week 
and a minimum of five dollars per week, for a maxi- 
mum period of three hundred weeks. 

Compensation may be settled by agreement sub- 
ject to the approval of the Commission or may be 
fixed by the Commission itself. 

Maine. 

Applies to all public and private employments — 
public officials, farm laborers and domestic servants 
excepted. 

Is compulsory as to state, cities, and counties and 
elective as to private employers and towns. 

Medical attendance is furnished by the employer 
for the first two weeks. 

For total disability the allowance is 50 per cent, 
of the average weekly wages, with a maximum of 
ten dollars per week and a minimum of four dol- 
lars per week, for a maximum period of five hun- 
dred weeks, and a maximum amount of three 



APPENDIX A 119 

thousand dollars ; for partial disability 50 per cent, 
of the average loss of earning power, with a maxi- 
mum of three hundred weeks, is allowed. 

In case of death dependents receive 50 per cent, 
of the average weekly wages, with a maximum of 
ten dollars per week and a minimum of four dollars 
per week for three hundred weeks after the injury. 

Maryi^and. 

Applies to certain hazardous employments enum- 
erated in the act. Farm laborers, domestic servants, 
country blacksmiths, wheel-wrights and similar 
employments, and any employee receiving in excess 
of two thousand dollars a year as salary, are ex- 
cepted. 

Compensation commences at the end of the 
second week following the iniury except in case of 
permanent total disability when the compensation 
commences after the first week. 

Employers must furnish medical attendance to 
the extent required by the Commission, at a maxi- 
mum expense of one hundred and fifty dollars. 

Compensation for permanent disability is 50 per 
cent, of the average weekly wages, maximum 
twelve dollars, minimum five dollars, but the aggre- 
gate payments cannot exceed five thousand dollars. 
For partial disability 50 per cent, of the loss of 
earning capacity, maximum twelve dollars per 
week, is allowed, but the aggregate amount paid 
cannot exceed three thousand dollars. 



120 APPENDIX A 

In case of death dependents receive 50 per cent, 
of the average weekly wages, with a maximum of 
forty-two hundred and fifty dollars and a minimum 
of one thousand dollars. 

Compensation disputes are settled by the Com- 
mission or by arbitrators appointed by the Commis- 
sion. 

Massachusetts. 

Applies to all private employments and is elective. 

Compensation commences at the end of the first 
ten days of disability. 

Medical attendance is provided during the first 
two weeks or for a longer period in the discretion 
of the Accident Board. 

The compensation allowed is 66 2-3 per cent, of 
the average weekly wages with a maximum of ten 
dollars per week and a minimum of four dollars 
per week. The maximum period is five hundred 
weeks; maximum amount four thousand dollars. 

In case of partial disability 66 2-3 per cent, of the 
average loss of earning power, with the same limi- 
tations. 

In case death results, dependents receive 66 2-3 
per cent, of the average weekly wages, maximum 
ten dollars per week, minimum four dollars per 
week; maximum period five hundred weeks, and 
maximum amount four thousand dollars. 

Compensation may be settled by agreement, sub- 
ject to the approval of the Accident Board or by an 



APPENDIX A 121 

arbitration committee of three, the chairman of the 
committee being a member of the Board, but the 
action of such committee is subject to review by the 
Board. Other disputes are settled by the Board 
direct. 

Michigan. 

Applies to all public employments, except as to 
officials, and all private employments. Is elective 
as to private employments and compulsory as to 
state, counties, etc. 

Compensation commences on the fifteenth day 
after disability but if the disability continues eight 
weeks compensation is payable from the date of the 
injury. 

Employers must furnish reasonable medical aid 
when needed during the first three weeks after the 
injury. 

For total disability the allowance is 50 per cent, 
of the average weekly wages, maximum ten dollars 
per week, minimum four dollars per week; maxi- 
mum period five hundred weeks ; maximum amount 
four thousand dollars. 

For partial disability the maximum period is 
three hundred weeks. In case death results, de- 
pendents receive 50 per cent, of the average weekly 
wages, maximum ten dollars per week, minimum 
four dollars per week, for the remainder of the 
period between death and three hundred weeks 
after injury. 



122 APPENDIX A 

Compensation may be settled by agreement sub- 
ject to the approval of the Commission or an arbi- 
tration committee presided over by a member of the 
Board. Otherwise the Board settles the dispute. 

Minnesota. 

Applies to all public and private employments — 
public officials, railroad employees, farm employees 
and domestic servants excepted. Is elective. 

Compensation does not commence until after the 
first two weeks. 

The employer must furnish medical aid for a 
period of not more than ninety days. At any time 
within one hundred days after the injury the court 
may require medical treatment to be furnished at 
a maximum expense of two hundred dollars. 

Compensation provided is 50 per cent, of the 
weekly wages, maximum eleven dollars per week, 
minimum six dollars and fifty cents per week; 
maximum period three hundred weeks if the dis- 
ability is temporary, and four hundred weeks if 
permanent. In certain cases where the injuries are 
very severe the compensation period is extended to 
five hundred and fifty weeks. 

If death results, the compensation is based upon 
the number of the dependents and the degree of 
relationship, but the weekly payments are limited 
to a period of three hundred weeks. 



appendix a 123 

Nebraska. 

Covers all public employments — except as to 
officials — all private employments where five or 
more persons are employed regularly in the busi- 
ness, except farm labor, domestic service, out- 
workers and casual employments. Is elective. 

Personal injuries by accident arising out of and 
in course of the employment, unless due to willful 
intent of the employee to injure himself, or intoxi- 
cation. 

Compensation begins on the fifteenth day, unless 
disability lasts eight weeks in which case compen- 
sation becomes payable from the date of the injury. 

The employer furnishes medical attendance dur- 
ing the first twenty-one days of disability at a maxi- 
mum expense of two hundred dollars. 

Compensation for total disability is 50 per cent, 
of the wages during the first three hundred weeks, 
maximum ten dollars per week, and minimum five 
dollars per week. After three hundred weeks 40 
per cent, of the weekly wages during life is allowed 
with a maximum of eight dollars and a minimum of 
four dollars. For partial disability 50 per cent, of 
the loss of earning power for a period of three 
hundred weeks is allowed. Special allowances are 
made for the loss of certain members of the body. 

If death results, total dependency is provided for 
on the basis of 50 per cent, of the weekly wages, 
maximum ten dollars per w^eek and minimum five 



124 



APPENDIX A 



dollars per week, for a maximum period of three 
hundred weeks. 

Nevada. 

Covers all public and private employments except 
domestic service, stock or poultry raising and farm 
labor. 

Elective as to private employments but compul- 
sory as to state, counties, etc. 

Personal injuries by accident arising out of and 
in course of the employment, unless due to willful 
intention on part of the employee to injure himself 
or injuries sustained while intoxicated. 

No compensation is paid for incapacity lasting 
less than five days. If the incapacity extends be- 
yond seven days compensation begins on the eighth 
day after the injury. If it continues for two weeks 
or longer compensation is allowed from the date of 
the injury. 

The employer must furnish such medical, surgi- 
cal or hospital service as ma}^ be reasonably re- 
quired for a period of four months. 

The compensation allowance for total disability 
is 50 per cent, of the average monthly wages with 
a maximum of sixty dollars and a minimum of 
twenty dollars for a maximum period of one hun- 
dred months, and a maximum amount of five thou- 
sand dollars. For partial disability 50 per cent, of 
the wage loss is allowed for a maximum period of 
sixty months. 



APPENDIX A 125 

Total dependency is provided for on the basis of 
40 to 60 per cent, of the average monthly wages 
with a maximum amount of four thousand, five 
thousand or six thousand dollars, according to the 
condition of the dependents. 

Where there are any surviving children those 
under sixteen years of age receive monthly pay- 
ments of from ten dollars to thirty-five dollars, the 
amount and period of the payments being under the 
control of the Commission. The Commission has 
full control of the matter of compensation settle- 
ments. 

New Hampshire. 

Covers all employments hazardous to the life or 
limb of the employee. Is elective. 

Any injury arising out of and in course of the 
employment, unless due to intentional violation of 
law, or willful misconduct. 

Compensation commences after the first two 
weeks of disability. 

For total disability 50 per cent, of the average 
weekly wage is allowed, maximum ten dollars per 
week, with a maximum period of three hundred 
weeks. Partial disability, 50 per cent, of average 
loss of earning power with a maximum of ten dol- 
lars per week and a maximum period of three hun- 
dred weeks. 

In case death results, dependents receive one 
hundred and fifty times the average weekly earn- 



126 APPENDIX A 

ings, less any disability payments made, with a 
maximum of three thousand dollars. 

New Jersey. 

Covers all private employments, except casual, 
and all public employments, except as to elective 
officials or those receiving a salary in excess of 
twelve hundred dollars a year. Elective as to pri- 
vate employments but compulsory as to state, coun- 
ties, etc. 

Personal injuries by accident arising out of and 
in course of the employment except when inten- 
tionally inflicted, or when intoxicated. 

Compensation begins the fifteenth day after the 
injury. 

If death results from the injury, provision is 
made for the dependent widow during her life or 
until re-marriage and provision is also made for 
dependent children under the age of eighteen years. 

The Commission has full control of settlement 
agreements. 

Ohio. 

Applies to all employments, except as to officials, 
and policemen or firemen in localities maintaining 
a pension fund; applies also to all private employ- 
ments where five or more persons are rejSfularly 
employed. Is compulsory. 

Personal injuries sustained in the course of the 
employment, unless intentionally self-inflicted. 



APPENDIX A 127 

Compensation commences from the first week 
after the injury. 

Medical attendance may be ordered furnished by 
the Commission in its discretion at a maximum cost 
to the employer of two hundred dollars. 

The compensation allowed is 66 2-3 per cent, of 
the average weekly wages, maximum twelve dol- 
lars per week, minimum five dollars per week; 
maximum period six years; maximum amount 
thirty-seven hundred and fifty dollars, except that 
if the disability be permanent compensation con- 
tinues until death upon the above basis. For partial 
disability the allowance is 66 2-3 per cent, of the 
loss of earning power, maximum twelve dollars per 
week, and maximum amount thirty-seven hundred 
and fifty dollars. For loss of certain members of 
the body special allowances are made. 

If the injury causes death within two years de- 
pendents receive 66 2-3 per cent, of the average 
weekly wages for the remainder of the period be- 
tween date of death and six years after the date of 
the injury with a maximum of thirty-seven hundred 
and fifty dollars and a minimum of fifteen hundred 
dollars. 

Compensation settlements are under the entire 
control of the Commission. 

Pennsyi^vania. 

Applies to all public and private employments, 
except domestic servants, farm labor, and casual 



128 APPENDIX A 

employments. Elective as to private employments 
but compulsory as to state, counties, etc. 

Injuries sustained by accident in course of the 
employment and such disease or infection as natur- 
ally results therefrom, unless willfully self-inflicted. 

Compensation commences after fourteen days of 
disabilitv. 

Employer furnishes necessary medical attendance 
during the first fourteen days, maximum expense 
twenty-five dollars, but if an operation be necessary 
seventy-five dollars is allowed. 

The compensation allowed is 50 per cent, of the 
average weeklv wages, maximum ten dollars per 
week, minimum five dollars per week; maximum 
period five hundred weeks, maximum amount four 
thousand dollars. Partial disability is compensated 
for on the same percentage basis with a maximum 
period of three hundred weeks. Special provision 
is made for loss of certain members of the body. 

If death results from the injuries, dependents 
receive from fifteen to sixty per cent, of the weekly 
wages according to the number of dependents and 
the relationship, with a maximum of twenty dollars 
per week and a minimum of ten dollars per week; 
maximum period three hundred weeks. 

Rhode Island. 

Applies to all private employments where more 
than five are regularly employed — except domestic 
servants, farm laborers and employees receiving a 



APPENDIX A 129 

yearly salary in excess of eighteen hundred dollars. 
Employers having five or less employees may elect 
to come under the act. 

Personal injuries by accident arising out of and 
in course of the employment, unless due to willful 
intent on part of the employee to injure himself or 
another, or to intoxication while on duty. 

Compensation begins on the fifteenth day after 
the injury. 

Employers must furnish reasonable medical ser- 
vice when needed during the first two weeks. 

The compensation allowance is 50 per cent, of the 
average weekly wages, maximum ten dollars per 
week, minimum four dollars per week, maximum 
period five hundred weeks. For partial disability 
the allowance is 50 per cent, of the average wage 
loss, maximum ten dollars per week, maximum 
period three hundred weeks. Special allowance is 
made for loss of certain members of the body in 
addition to other compensation. 

In case death results dependents receive 50 per 
cent, of the average weekly wages, maximum ten 
dollars per week, minimum four dollars per week; 
maximum period three hundred wrecks. 

Compensation may be settled by agreement be- 
tween the parties subject to the approval of the 
Superior Court ; if the parties cannot agree a peti- 
tion may be filed in the Superior Court for the deter- 
mination of the matter. 



130 appendix a 

Texas. 

Applies to all employments except domestic ser- 
vants, farm labor, railways, cotton gin workers or 
employments with less than five employees. Elec- 
tive. 

Personal injuries sustained in the course of the 
employment. 

Compensation begins on the eighth day after the 
injury. 

Medical attendance must be furnished during the 
first week after the injury. 

Compensation is 60 per cent, of the average 
weekly earnings, maximum fifteen dollars per week, 
minimum five dollars per week; maximum period 
four hundred weeks; the partial disability allow- 
ance is 60 per cent, of the average loss of earning 
power, maximum fifteen dollars per week, maxi- 
mum period three hundred weeks. For loss of cer- 
tain members of the body special allowance is made 
in addition to compensation. 

For death 60 per cent, of the average weekly 
earnings, maximum fifteen dollars per week, mini- 
mum five dollars per week, maximum period three 
hundred and sixty weeks, to be distributed accord- 
ing to the law governing the distribution of prop- 
erty of deceased persons. 

Compensation settlements may be made by agree- 
ment of the parties or by the Commission. 



appendix a 131 

Vermont. 

Applies to public and private employments, ex- 
cept public officials, domestic servants or employees 
receiving a salary in excess of fifteen hundred dol- 
lars a year. Elective. 

Personal injuries arising out of and in course of 
the employment, unless caused by the employee's 
willful intention to injure himself or another, or by 
intoxication or failure to use the safety appliances 
provided. 

Compensation commences on the fifteenth day of 
the disability. 

During the first fourteen days the employer must 
furnish reasonable medical service at a maximum 
expense of seventy-five dollars. 

The compensation allowed is 50 per cent, of the 
average weekly wages, maximum twelve dollars and 
fifty cents per week, minimum three dollars per 
week; maximum period two hundred and sixty 
weeks. For partial disability the allowance is 50 
per cent, of the average loss of earning power, 
maximum ten dollars per week, maximum period 
five years. For loss of certain members of the body 
special provision is made. Inability to obtain em- 
ployment owing to disfigurement may be considered 
partial disability. 

In case death results, the allowance is 15 to 45 
per cent, of the average weekly wages, according 
to the degree of dependency and the number and 
relationship of dependents. The maximum amount 



132 APPENDIX A 

is thirty-five hundred dollars and the maximum 
period is two hundred and sixty weeks in case of 
close dependents, otherwise two hundred and eight 
weeks, 

Wisconsin. 

Applies to public employments except as to 
officials, and all private employments except as to 
steam railroads engaged in the business of common 
carriers, and also casual eriiployments. Elective as 
to private employments, compulsory as to state, 
counties, etc. 

Personal injuries sustained in performing service 
growing out of the employment, unless intentionally 
self-inflicted. 

Compensation begins on the eighth day after the 
disability but if the disability lasts more than four 
weeks compensation is payable from the first day. 

Medical attendance must be furnished by the 
employer for a maximum period of ninety days. 
The Commission is authorized to pass upon the 
reasonableness of the charges of the physician. 

The compensation allowed for total disability is 
65 per cent, of the average weekly earnings during 
disability; maximum period fifteen years. If a 
nurse is required the rate may be increased to 100 
per cent, after the first ninety days, but the aggre- 
gate indemnity for a single accident is subject to a 
maximvmi of six times the average annual earnings 



APPENDIX A 133 

if permanent, or four times average annual earn- 
ings if temporary. 

The partial disability allowance is 65 per cent, of 
the wage loss, with a maximum of four times the 
average annual earnings, maximum period fifteen 
years. For loss of certain members of the body 
special provision is made. 

If death results dependents are entitled to four 
times the average annual earnings, with a maxi- 
mum of six times the average annual earnings, in- 
clusive of disability payments. 

Compensation may be settled by agreement sub- 
ject to the supervision of the Commission or by the 
Commission upon application of either party. 

United States. 

Applies to all civil employees in the United States 
and the Panama Railroad Company. Compulsory. 

Personal injuries sustained in performance of 
duty, unless caused by willful misconduct or by in- 
tentional self -in jury, or by intoxication. 

Compensation commences on the fourth day of 
disability. 

Medical treatment is furnished for a reasonable 
length of time after the injury. 

The compensation allowed for total disability is 
66 2-3 per cent, of the monthly payments with a 
maximum of sixty-six dollars and sixty-seven cents 
per month and a minimum of thirty-three dollars 
and thirty-three cents per month. Compensation 



134 APPENDIX A 

continues during the entire period of disability. For 
partial disability 66 2-3 per cent, of loss of earning 
power is allowed with a maximum of sixty-six dol- 
lars and sixty-six cents per month. If the employee 
be partially disabled and declines a suitable position 
offered him by the Commission his compensation 
ceases. 

In case the injury results fatally within six years 
compensation equal to from 10 per cent, to 66 2-3 
per cent, of the monthly wages is paid according to 
the number and relationship of the dependents and 
the degree of dependency, the monthly earning be- 
ing computed upon the basis of a maximum of one 
hundred dollars per month and a minimum of fifty 
dollars per month. Compensation to the widow 
continues until her death or re-marriage. Children 
are allowed compensation until they reach the age 
of eighteen years or if they are over that age and 
incapable of supporting themselves the compensa- 
tion continues until they become self-supporting. 

All compensation matters are under the control 
and supervision of the Commission. 



APPENDIX B 

Changes in the Rhode Island Act Effective June 
First, Nineteen Hundred and Seventeen. 

Since the foregoing was written the legislature 
of the State of Rhode Island has passed an act, in 
amendment of, and in addition to the present Work- 
men's Compensation Act of the state. 

The new legislation changes the present law in the 
following respects: (a) If total incapacity ex- 
tends beyond a period of four weeks, compensation 
commences from the date of injury. 

(b) During the first four weeks after the injury 
the employer is required to furnish reasonable medi- 
cal and hospital services and medicines when neces- 
sary. 

(c) The employee has the right to select the 
physician by whom, or the hospital in which he 
desires to be treated and the employer is required 
to pay the reasonable charges of the physician or 
hospital so selected. 

(d) The physician is required to give written 
notice to the employer within seven days from the 
time he commences to treat the employee and must 

135 



136 APPENDIX B 

also present his claim to the employer for the ser- 
vices he has rendered, within three months from the 
date of the termination thereof. 

(e) A wife who is living apart from her hus- 
band for a justifiable cause or because he has de- 
serted her, is deemed to be a dependent. 

(f) The law is extended to cover state em- 
ployees receiving eighteen hundred dollars ($1800) 
or less per year. 

(g) Any city or town in the state may accept 
the act if it elects so to do and in case of such accept- 
ance said city or town is allowed to designate the 
class of employees to receive compensation. Regu- 
larly organized police and fire departments of any 
city or town are expressly excluded from the opera- 
tion of the act. 



INDEX 



INDEX 

Abolition of defenses, 53. 

Accidents, cause of most due to employee or fellow servant, 
19, 44. 

under German law, 39. 
Accident suits, large cost of defending, 21. 
Agreements between employer and employee, 68, 76. 
Alternative plan, 68, 76. 

American Bar Association, recommendations, 51. 
Antagonism between employer and employee eliminated by 

act, 22. 
Appeal, 71, 72. 
Assignment of claims, 66. 
Assumption of risk under Common Law, 32. 
Attorney's fees, 71. 
Average weekly wage, 62. 

Burial and last sickness when there are no dependents, 60. 
Causes of accidents, German statistics, 39. 
Children, under English law, 26. 

under law of Holland, 28. 
Code Napoleon, right to damages under, 18, 
Common Law, duties of employers under, 18. 
Commutation of award, 67. 
Comparative negligence, when doctrine does not apply, 34. 

a judge made rule, 42. 

(139) 



140 INDEX 

CcHnpensation should be sure and definite for every iu- 
jury, 46. 

Constitutionality of Federal Act, 43. 
New York Act, 50. 
Washington Act, 50. 

Costs and fees, 71. 

Damages, workman barred from recovering in certain cases, 

39. 
Death, compensation for and to whom given, 57, 64. 

from causes other than that for which compensation 
is being paid, 64. 
Delay in payment of compensation easy matter under present 
system, 100. 
of employer in furnishing medical attendance, effect 
of, 95. 
Dependents, presumption as to, 58, 59. 
Diminution of wages must be accepted by workman during 

disability, 48. 
Disability, classification, 60. 

allowance, 81, 82. 
Due process of law, compensation legislation is not in vio- 
lation of, 107. 
Election to come under act, how made, 54. 
Emergency treatment, employer's duty as to, 96. 
Employee, selection of physician by, 95. 

welfare of, is of vital interest to state, 46. 
Employer, not held insurer under Common Law, 32. 

relieved of damage suits under act, 22. 
English Act, scale of payments, 26. 

widow and children under, 26. 
Executions, 71. 

Expense of litigation under old law actually borne by public 
at large, 45. 



INDEX 141 

Expert, when employee may secure, 96. 

Fatal accidents, payments in, 40. 

Federal Compensation Law, 52. 

Federal Employers' Liability Act, passed 1906, held uncon- 
stitutional, second act passed 1908 and held 
constitutional, 43. 

Fees and costs, 71. 

Fellow servant rule, leading cases on, 34. 

abolished in Mass, and other states, 42, 43. 
Forms and orders to be furnished by Superior Court, 74. 
French Act, medical attendance and scale of payments, 25. 
Garnishment of awards, 66. 

German Act, medical attendance and payments under, 23, 
24. 

German statistics as to accidents, 39. 

Good government, meaning of, 29. 

Hazardous work, high rate of insurance on, 46. 

Holland Act, provisions of, 27. 

Industrial Accident Board, advantages of, 102. 

Injury, must be caused by employer's negligence under 

Common Law, 32. 
Insurance companies, enforcement of claims against, 79. 
Insurance of employer, effect of, 62. 

Knowledge of injury by person in authority, effect of, 96. 
Liability of employer lacking in great number of cases, 44. 
Liberal view taken by Rhode Island Courts, 101. 
Limitations, 74. 

Litigation expenses really borne by public, 45. 
Loss of position likely if workman sued his employer, 44. 
Lump sum payments, 67. 
Massachusetts, fellow servant rule abolished in, 43. 



142 INDEX 

Medical attendance, 57, 84, 95. 

Medical examiner may be appointed by court, 66. 

Minor deemed sui juris, 56. 

Mistaken advice by employer's physician, effect of, 97. 

Negligence, 18, 32. 

New York Act, 49, 50. 

declared constitutional by U. S. Supreme Court, 106. 

Norway Act, 28. 

Notice of injury, 64, 65, 96. 

Ohio statistics as to accidents, 39. 

Parliament of England may legislate free from restraint, 
104. 

Partial or temporary disability, 60. 

Payments in fatal cases, 40. 

Petition and answer, 70. 

Physical examination of employee, 65, 66. 

Physician, selection of, 25, 26, 27, 95. 
enforcement of claims of, 90. 
hired by employee, status of, 96. 

Police power, compensation legislation supportable as a 
proper exercise of, 108. 

Preference of claims, 67. 

Presumption that legislatures will not violate State Con- 
stitutions, 105. 

Previous injury, effect of, 62. 

Proper medical attention, meaning of, 95. 

Protection of workman aim of compensation idea, 48. 

Reasonable care demanded of employer under common law, 
32. 

Refusal of employee to submit to physical examination, 
effect of, 66. 

Review of award findings or decree, 73. 



INDEX 143 

Rhode Island Act, general provisions, 53-80. 

(See also specific titles,) 
Risk, payment of workman not commensurate with, 38. 
Security of compensation, 76. 

Selection of physician by injured workman, 25, 27, 86. 
Social aspect of industrial accidents, 21. 
Specific injuries, compensation for, 62. 
States in which workmen's compensation laws have been 

adopted, 52. 
Statistics as to accidents, 39, 81. 

as to physician's charges, 87. 
Subrogation, 75, 79. 
Swiss Act most advanced form of compensation legislatk)n, 

18. 
Total or permanent disability, 60. 

Totally disabled workman often an object of charity, 42. 
Treatment, periods of in various states, 89. 
Wages of workmen too small for savings, 41, 46. 
Wainwright Commission report, 49. 
Waiting period, 83. 
Washington Act constitutional, 50. 

held constitutional by U. S. Supreme Court, 106. 

Widow, 26, 28. 

(See dependents.) 

Wilful injury, effect of, 57. 

Workman, a soldier of organized industry, 110. 



